R.S.A.No. 725 of 2007 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 725 of 2007 (O&M) Date of decision: 3.11.2009 Jarnail Singh and others ......Appellants Versus Dev Raj and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.D.D.Bansal, Advocate, for the appellants. Mr.A.K.Khungar, Advocate, for respondent No.1. **** SABINA, J. Plaintiff-appellants filed a suit for declaration and permanent injunction, which was decreed by the Additional Civil Judge (Sr.Divn.), Bathinda vide judgment and decree dated 23.8.2006 . In appeal filed by defendant No.1, the said judgment and decree were set aside by the Additional District Judge, Bathinda vide judgment and decree dated 3.11.2006 and the suit of the plaintiffs was dismissed. Hence, the present appeal by the plaintiffs. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 11 of its judgment, are as under:- R.S.A.No. 725 of 2007 (O&M) 2 “2. The facts necessary for disposal of the appeal are that as per revenue record defendant Mohinder Singh son of Ram Rattan Singh was a co-sharer in the land, jamabandi Ex.P-4 for the year 1986-87 reveals that Mohinder Singh and Inder Singh sons of Ram Rattan Singh were co-sharer to the extent of 7/12 share, Smt.Surjit Kaur wife of Inder Singh and Smt.Gurdev Kaur wife of Mohinder Singh were co-sharers to the extent of 1/4th share in equal share and Arjan Singh son of Narain Singh was co-sharer to the extent of 1/6th share. Vide mutation No.16865 inheritance of Arjun Singh devolved upon Inder Singh, Mohinder Singh his nephews in equal shares. Therefore, share of Mohinder Singh augmented 7/24 + 1 ½ = 9/24 share. Thus, as per jamabandi for the year 1986-87 defendant Mohinder Singh son of Ram Rattan Singh was co-sharer to the extent of 9/24 share out of total land measuring 474 kanals 10 M, bearing khewat number 206, Khatauni Nos. 342 to 352 in the are of village Kot Shamir (Ist). Plaintiff Jarnail Singh is son of said Mohinder Singh whereas remaining plaintiffs Kuldip Singh and Harcharan Singh are sons of Jarnail Singh i.e. grand sons of Mohinder Singh. 3. The present plaintiffs/respondents namely Jarnail Singh and his sons Kuldip Singh and Harcharan R.S.A.No. 725 of 2007 (O&M) 3 Singh have filed civil suit No.329 of 2.12.2000 against Mohinder Singh defendant/respondent, who was father of Jarnail Singh plaintiff and grand father of the remaining plaintiffs, for declaration to the effect that suit property is ancestral and coparcenary property, plaintiff Jarnail Singh is real son of the defendant and plaintiff Kuldip Singh and Harcharan Singh are grand sons of Mohinder Singh, defendant Mohinder Singh is alleged to be a spendthrift person and addicted to intoxication, sold his share in the suit property to some persons, a family settlement took place between the parties and suit land fell to the share of plaintiffs in equal shares. 4. In Civil Suit No.329 of 2000 Mohinder Singh defendant appeared and he filed written stateent admitting the claim of his sons and grand sons. However, he denied the averments of para No.5 to the effect that he is spendthrift person or he is addicted to intoxicants and also denied the averments of para No.7 wherein it is mentioned that Mohinder Singh has right to transfer his share in the suit property. Said suit was decreed on 28.7.2001 by the then learned civil Judge (Jr.Divn.) Bathinda. 5. After filing of above said suit on 21.12.2001 i.e. after 19 days from filing the above said suit No.329 R.S.A.No. 725 of 2007 (O&M) 4 of 2000, Mohinder Singh son of Ram Rattan Singh had mortgaged with possession 44 kanals 3 marlas of land in favour of appellant Dev Raj for Rs.2 lacs. Again on 15.5.2001 said Mohinder Singh has received Rs.2,50,000/- and executed additional mortgage deed (total Rs.4,50,000/-). 6. Mutation on the basis of above said mortgage deed was entered vide rapat rojnamcha No.503 dated 18.5.2001 in rojnamcha Wakiati by halqa patwari vide Ex.P6 and mutation was also sanctioned in favour of mortgagee Dev Raj. Thus, Mohinder Singh has mortgaged above said 44 kanals 3 marlas of land in favour of appellant Dev Raj for a total consideration of Rs.4,50,000/- and appellant Dev Raj had become mortgagee under Mohinder Singh, a defendant in this case also. 7. The present suit has been filed by the plaintiffs/respondents for declaration to the effect that mortgage deed No.1194 dated 15.5.2001 executed by Mohinder Singh defendant in favour of Dev Raj and report rojnamcha Wakiati No.503 dated 18.5.2001 are null an void, inoperative, not binding on the rights of plaintiff and same is without legal necessity and also without consideration. Plaintiffs also sought relief of R.S.A.No. 725 of 2007 (O&M) 5 permanent injunction restraining defendant Dev Raj from taking illegally and forcibly possession from them with regard to land measuring 44 kanals 3 marlas, fully described in the head note of the plaint. 8. In nutshell, it is the case of the plaintiffs, that they have become exclusive owners on the basis of judgment Ex.P-7 and decree Ex.P8 culminated in civil suit no.329 of 2000 decided on 28.7.2001. It is specifically averred in the written statement that the plaintiffs have become owners to the extent of 1/8 share in total with regard to land measuring 319 kanals 3 marlas as depicted in jamabandi for the year 1996- 97. It is also alleged that during pendency of above said civil suit no.329 of 2000 Mohinder Singh had created above said mortgage, therefore, mortgage is hit by principle of lispendence. According to them, the mortgage is illegal, null and void, without any necessity and without any consideration. 9. The present suit has been contested by the defendant/appellant Dev Raj, inter alia, that plaintiffs are not owners of the suit property, they have no right or title with the same and above said judgment Ex.P-7 and decree Ex.P-8 are collusive and have been obtained malafidely to usurp and disclaim the liabilities R.S.A.No. 725 of 2007 (O&M) 6 of defendant Mohinder Singh. The earlier suit culminated into judgment Ex.P-7 and decree sheet Ex.P-8 is a fraud. In fact, there was no partition in between Mohinder Singh on one hand, his son and grand sons on the other. The land under mortgage is in possession of defendant/appellant Dev Raj w.e.f. 2.12.2000. However, the same is given to Mohinder Singh son of Inder Singh for cultivation. 10. On merits, the averments of the plaint have been denied. It is specifically averred in the written statement that above said judgment Ex.P-7 and decree Ex.P-8 are collusive and fraudulent happending and same are misdeed only to mar or grab the liability of Mohinder Singh defendant. In fact, Mohinder Singh defendant was under legal debt for the maintenance and welfare of his family and to adjust the debt, he had created mortgage. Even otherwise as per plaint, the plaintiffs have got decree only for 1/8 share out of total land measuring 319 kanals 13 marlas. 11. It is specifically mentioned in the written statement that the mortgaged money was received by Mohinder Singh defendant as an active good manager for the upkeep of the family and for betterment of the land in question. Defendant Mohinder Singh is a man R.S.A.No. 725 of 2007 (O&M) 7 of wisdom and has acted in best interests of the family. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the mortgage deed No.1194 dated 15.5.2001 is illegal, null and void? OPP 2. Whether the rapat No. 503 dated 18.5.2001 is illegal, null and void? OPP 3. Whether the suit of the plaintiffs is not maintainable in the present form? OPD 4. Whether the suit of the plaintiffs is not properly valued for the purpose of court fee and jurisdiction? OPD 5. Whether the plaintiff is entitled to declaration as prayed for? OPP 6. Whether the plaintiff is entitled to the relief of permanent injunction as prayed for? OPP 7. Relief. ” After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves to be dismissed. The plaintiffs had filed a suit for declaration that mortgage deed executed in favour of defendant No.1 by defendant No.2 was inoperative and not binding on the rights of the plaintiffs in any manner. R.S.A.No. 725 of 2007 (O&M) 8 A copy of the mortgage deed dated 15.5.2001 was proved on record as Ex.P-1. The said mortgage was additional mortgage with regard to the land measuring 44 kanals 3 marlas. Same land was already under mortgage with possession with Dev Raj vide registered mortgage deed dated 21.2.2000. Learned Additional District Judge, after appreciating the evidence led by the parties on record, has given a finding of fact that there was no document to establish that the suit land was in any manner ancestral or coparcenary property. The plaintiffs had placed reliance on jamabandi Ex.P-4, as per which Mohinder Singh and his wife were recorded as co-sharers along with Inder Singh and his wife. Arjan Singh, paternal uncle of Mohinder Singh was also recorded as owner. The share of Arjan Singh was mutated in favour of Mohinder Singh and Inder Singh in equal shares. In these circumstances, learned Additional District Judge rightly held that the suit property could not be described as ancestral property in the hands of Mohinder Singh. Mohinder Singh-defendant No.2 mortgaged his land with defendant No.1 Dev Raj. In earlier civil Suit No.329 of 2000 as reproduced in the impugned judgment passed by the learned Additional District Judge, reads as under:- “The defendant has not pleaded that he has got the mortgage deed executed bonafide and without any notice of the rights of the plaintiffs. Meaning thereby the R.S.A.No. 725 of 2007 (O&M) 9 mortgage deed has been executed on 15.5.2001 by defendant No.2 during the pendency of civil suit No.329 dated 2.12.2000. Defendant No.2 had no legal right to create any liability over the land for which the civil suit is already pending in the Court, on the basis of title. The plaintiffs have also pleaded that defendant No.2 was spend thrift person. He was addicted to intoxication and was in the habit of selling the land without any legal necessity. The contesting defendant had denied these facts of the plaint. The plaintiffs have also tried to prove this fact by examining Jarnail Singh PW1, Sandhura Singh P:W-2. The said conduct of defendant No.2 is not material in these set of circumstances because the mortgage deed Ex.P-1 is hit by the principle of lispendence being executed during the pendency of the suit relating to the same property. The counsel for the defendant has made this submission that the decree is subject to encumbrance and transfer. The said submission of the learned counsel for the defendant has no force because the encumbrance was created by defendant No.2 during the pendency of the civil suit and it is not the case of the defendant that his rights are protected under the provisions of Transfer of Property Act, being bonafide mortgage without any notice.” R.S.A.No. 725 of 2007 (O&M) 10 Learned Additional District Judge further observed that the judgment passed in the said civil suit was solely on the basis of family settlement between the plaintiff on one hand and Mohinder Singh on the other hand. However, no material showing the family settlement was produced on record. There was no material on record to establish that the suit property was ancestral property of Mohinder Singh. The decree was passed merely on the basis of admission, whereas, no excerpts were produced on record to establish that the suit property was ancestral property of Mohinder Singh. The first mortgage deed executed by Mohinder Singh dated 21.12.2001 was never challenged. Learned Additional District Judge, after appreciating the evidence on record has given a finding of fact that the judgment Ex.P-7 and decree Ex.P-8 were collusive in nature and hence, the principle of lis pendence as envisaged under Section 52 of the Transfer of Property Act was not applicable. Learned counsel for the appellants has failed to successfully challenge the said finding of fact. In these circumstances, learned Additional District Judge had rightly dismissed the suit of the plaintiffs. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE November 03, 2009 anita