R.S.A.No.3836 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.3836 of 2008 Date of Decision:13.01.2009 Suresh Kumar son of Sh.Dharam Pal .....Appellant versus Ramesh Devi .....Respondent CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL. Present: Mr.R.S.Mamli, Advocate, for the appellant. **** AJAY KUMAR MITTAL, J. This regular second appeal filed by the defendant is directed against the judgment and decree dated 23.09.2008 passed by the Additional District Judge, Yamuna Nagar at Jagadhri affirming that of the Civil Judge (Junior Division), Yamuna Nagar at Jagadhri dated 05.05.2008 whereby suit of the plaintiff for possession was decreed. The plaintiff filed a suit for possession of the shop measuring 23' x 10' situated within the area of Gobindpura, Tehsil Jagadhri, District Yamuna Nagar, now within the Municipal limits of Municipal Council, Yamuna Nagar (here-in-after referred to as the suit property) by way of redemption of registered mortgage deed dated 20.03.1998 created by her in favour of the defendant. It was pleaded that she was the owner of the suit property which had been mortgaged by her to the defendant vide registered mortgage deed dated 20.03.1998 for a sum of Rs.10,000/- and the possession thereof was also delivered to the defendant. As per terms R.S.A.No.3836 of 2008 2 and conditions of the mortgage deed, it was agreed between the parties that the plaintiff would be at liberty to get her shop redeemed and to take its possession at any time as per her wishes and in turn the defendant was at liberty to receive the mortgage amount at any time. It was further pleaded that the plaintiff was ready to make the payment of the mortgage amount and requested the defendant to receive the same. It was also pleaded that she asked the defendant to redeem the suit property and to hand over the actual and physical possession thereof to her but the defendant had been prolonging the matter on one pretext or the other and ultimately refused to hand over its possession to the plaintiff, which compelled her to file the suit for possession. To controvert the averments made in the plaint, the defendant filed a written statement raising various preliminary objections. It was pleaded that the defendant was a tenant in the suit property which he had taken on rent in 1994 at the rate of Rs.600/- per month. However, in 1998, he installed an STD booth with the permission of the plaintiff and the rent of the shop was enhanced to Rs.1,000/- per month. It was further pleaded that security deed was also written because an amount of Rs.10,000/- had been taken as advance rent for a period of ten months from 01.04.1998 to 31.01.1999 by the plaintiff. It was also pleaded that the defendant had executed the rent deed in March, 1998 and the mortgage deed dated 20.03.1998 relied upon by the plaintiff was wrong, illegal, null and void and was a result of fraud and mis-representation. As there was a relationship of landlady and tenant between the parties and the defendant had been making the payment of the rent regularly without any delay, he had prayed for dismissal of the suit. From the pleadings of the parties, the trial Court framed various issues and on appreciation of the oral as well as the documentary evidence had come to a conclusion that the plaintiff was entitled to get the R.S.A.No.3836 of 2008 3 possession of the suit property by way of redemption of the registered mortgage deed dated 20.03.1998. Accordingly, the trial Court vide judgment and decree dated 05.05.2008 decreed the suit of the plaintiff and directed the defendant to hand over the possession of the suit property to the plaintiff within one month from the date of passing of the decree who would be at liberty to get the mortgage amount released deposited by the plaintiff on 18.01.2005 vide treasury challan, Exhibit D-11. The defendant was also directed to make the payment of Rs.30/- per day to the plaintiff as mesne profit for illegal and unauthorised use of the shop in question, with effect from 18.01.2005, the date when the defendant had deposited the mortgage money till the delivery of the possession of the suit property. Feeling aggrieved, the defendant took the matter in appeal and the lower appellate Court vide judgment and decree dated 23.09.2008 affirmed the findings recorded by the trial Court and dismissed the appeal. I have heard the learned counsel for the appellant and have also perused the impugned judgments with his assistance. No illegality or perversity could be pointed out in the concurrent findings of fact recorded by the Courts below except that the learned counsel for the appellant made valiant efforts to re-appreciate the evidence and to arrive at a different conclusion than that of the Courts below. However, the trial Court had recorded a finding of fact that the mortgage deed, Exhibit P-1, was executed by the defendant with his own free will and he had failed to prove that initially he acquired the possession of the suit property as a tenant which was later on converted into mortgage as neither the copy of the rent deed nor any receipt which had been issued by the plaintiff after acceptance of the rent from him had been placed on record. The aforesaid findings were affirmed by the lower appellate Court in appeal. No question of law, much less a substantial question of law R.S.A.No.3836 of 2008 4 arises in this appeal for consideration of this Court. In view of the above, there is no merit in this appeal and the same is hereby dismissed with no order as to costs. January 13, 2009 (AJAY KUMAR MITTAL) gbs JUDGE