RSA No.2682 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 2682 of 2008 (O&M) Date of Decision: November 06, 2009 Nachhattar Singh ...........Appellant Versus Manohar Lal ..........Respondent Coram: Hon'ble Mrs. Justice Sabina Present: Ms.Anita Sharma, Advocate for Mr.Gurcharan Dass, Advocate for the appellants ** Sabina, J. Plaintiff-Manohar Lal filed a suit for possession by way of redemption of the shop fully detailed and described in the heading of the plaint on the payment of mortgage amount of Rs.18,000/- to the defendant. The said suit of the plaintiff was decreed and plaintiff was held entitled for the possession of the shop in dispute on payment of Rs.18,000/- to the defendant by the Civil Judge (Junior Division) Jagraon vide judgment and decree dated 25.4.2007. Aggrieved by the same, defendant filed an appeal and the same was dismissed by the Additional District Judge, Fast Track Court, Ludhiana vide judgment and decree dated 10.4.2008. Hence, the present appeal has been filed by the defendant. The case of the parties, as noticed by the learned District Judge, in paras 2 and 3 of its judgment reads as under:- RSA No.2682 of 2008 (O&M) 2 “ 2. Briefly, the facts leading to the filing to the present appeal are that initially plaintiff/respondent Manohar Lal filed the suit for possession by way of redemption of the shop shown as red in the site plan situated in Agwar Ladhia, Jagraon, Tehsil Jagraon on the basis of registered mortgage deed dated 24.12.1998. The plaintiff is owner of the shop in question and mortgaged the said shop with possession to defendant for a consideration of Rs.18,000/- vide registered mortgage deed dated 24.12.1998 and it was agreed that plaintiff shall get the shop in question redeemed on the payment of mortgage money upto 24.12.2000. The plaintiff approached the defendant in the first week of December 2000 to accept the mortgaged amount of Rs.18,000/- and to vacate and hand over the vacant possession in his favour, but the defendant has shown indifferent attitude, which resulted the filing of the present suit. 3. Upon notice, the defendant put his appearance and contested the suit by taking preliminary objections on the ground that the suit is not maintainable, suit is bad for non joinder of the parties, plaintiff has played fraud with the defendant and plaintiff has not come to the court with clean hands. On merits, it has been alleged that plaintiff has played fraud with the defendant by mortgaging the property for which the plaintiff or his vendor has no ownership rights. The plaintiff and his mother in connivance with the witnesses got registered sale deed for the property for which the plaintiff or his vendor has no ownership right and plaintiff and his mother in connivance with the witnesses got registered sale deed for the property for which his mother was not the owner and RSA No.2682 of 2008 (O&M) 3 the property is a part of Shamlat of Agwarh Gujran. The ownership was transferred in the name of Municipal Council vide mutation No.6052 for the land measuring 34 kanal 3 marlas and the plaintiff after purchasing the property from his mother mortgaged the part of the property to defendant and the son of the defendant was tenant of the property mortgaged the same with his other Maya Devi and Varinder Kumar was occupying the same since 1993-94. An electric meter was also installed in the premises in the name of Varinder Kumar in the year 1995-96 who is regularly paying the electricity charges and he is a necessary party. The defendant has paid the amount as a loan and as a security he got registered the present mortgage deed in his favour. The parties to the suit having knowledge about the possession of Varinder Kumar and the mortgage deed was without possession, though in the mortgage deed it was with possession which was for formal. It is also alleged that the defendant is ready to redeem the shop in dispute after receiving the loan amount and keeping the possession intact of Varinder Kumar under the same terms and conditions before mortgage and denied all the other allegations being incorrect and prayed for dismissal of the suit. On the pleadings of the parties, the following issues were framed by the trial Court:- “1.Whether the plaintiff is entitled to possession by way of redemption on the basis of registered mortgage deed dated 24.12.1998 on payment o Rs.18,000/-?OPP 2.Whether the suit of the plaintiff is not maintainable ?OPD RSA No.2682 of 2008 (O&M) 4 3.Whether the suit is bad for non joinder of the necessary parties?OPD 4.Whether the plaintiff has suppressed the material facts and has not come to the Court with clean hands?OPD 5. Relief.” After hearing the learned counsel for the appellant, I am of the opinion that the instant appeal is devoid of any merit. Plaintiff had filed the suit for possession by way of redemption of the shop in dispute on payment of the mortgage amount. Exhibit P1 is the mortgage deed in question dated 24.12.1998. Plaintiff, in order to prove the execution of the mortgage deed, examined PW1 Buta Singh, PW2 Darshan Singh, Attesting witnesses and PW3 Avtar Singh Verma, Deed Writer to prove the execution of the deed. Plaintiff himself appeared in the witness box as PW4. All the said witnesses have deposed with regard to the due execution of the mortgage deed. Attesting witnesses also deposed with regard to the registration of the mortgage deed in question. Defendant, on the other hand, took up the plea that the plaintiff has played fraud upon the defendant. Plaintiff had no right to mortgage the suit property to the defendant as it formed part of shamalat land. In rebuttal, defendant examined DW1 Sukhdev Singh, Clerk Municipal Committee Jagraon and DW3 Baldev Kumar Patwari and himself appeared in the witness box as DW2. Both the Courts below, after appreciating the evidence led by the parties on record, held that the execution of the registered mortgage deed by the plaintiff in favour of defendant (Exhibit P1) was duly proved RSA No.2682 of 2008 (O&M) 5 and the defendant had failed to rebut the due execution of the same. The defendant had failed to establish that the Municipal Council was the owner of the suit property. It has been observed by the Courts below that , as per the copy of the jamabandi placed on record, 13/696 shares belonged to the co-owners,whereas, 683/690 shares in the total land measuring 34 kanals 16 marlas belonged to the Gram Panchayat which later on came to be owned by the Municipal Council. Both the Courts below, after appreciating the evidence on record, further have given a finding of fact that the mortgage deed indicated that the shop in dispute was not a part of the property described by DW1 and DW3. It has been rightly observed by the learned Additional District Judge that in case the Municipal Council had any concern with the land in dispute, they could get the same vacated from the plaintiff in due course of law. Defendant, in any case, could not retain the property which did not belong to him. Defendant had failed to establish that there was any relationship of landlord and tenant between plaintiff or his mother and Varinder Kumar, son of the defendant. The findings of fact given by the Courts below do not call for any interference by this Court in appeal. No substantial question of law arises in this case which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge November 06 , 2009 arya RSA No.2682 of 2008 (O&M) 6