CM No.6879-C of 2008 :1: RSA No.2314 of 2008 (O & M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No.6879-C of 2008 and RSA No.2314 of 2008 (O & M) Date of decision: 09.03.2010 Rattan Lal Arya and others .. Appellants Versus Om Chand and others ..Respondents CORAM: HON'BLE MR.JUSTICE AJAY TEWARI a). Whether Reporters of Local Papers may be allowed to see the judgment ? b). To be referred to the Reporters or not ? c). Whether the judgment should be reported in the Digest ? Present:- Mr. R.S. Sihota, Senior Advocate with Mr.Ashok Sharma, Advocate for the appellants. AJAY TEWARI J. (ORAL) . . . CM No.6879-C of 2008 For the reasons recorded in the Civil Miscellaneous Application, same stands allowed and the persons mentioned in Para 2 of the Application are impleaded as LRs of appellant-Chhote Lal, who is reported to have died. Registry is directed to make necessary corrections in the Memo of Parties. RSA No.2314 of 2008 This appeal has been filed against the concurrent judgments of the Courts below holding that the respondent Nos.1, 2 and 4 were co-mortgagees of the land of respondent No.3 along with the appellants. The plea of the appellants was that in fact their predecessor-in-interest viz. Chhote Lal was the sole mortgagee and that CM No.6879-C of 2008 :2: RSA No.2314 of 2008 (O & M) the predecessor-in-interest of the respondents viz. Harchandi had no connection with the mortgage. Both the Courts relied upon the old Revenue Record which showed both Harchandi and Chhote Lal as co-mortgagees to decree the suit. The following questions have been proposed:- (i) Whether the both courts below have wholly misread and misappreciated the evidence on the record with regard to the mortgage of the suit land with Chotte Lal and its redemption ? (ii) Whether the suit is liable to be dismissed, in view of the admitted evidence that the plaintiff Om Chand was present in the court and he did not depose/prove the plaint and hence it is clear violation of order 3 Rules 1 and 2 of the C.P.C. ? (iii) Whether the courts below have failed to appreciate that by virtue of order of the Tehsildar (Sales) Gurgaon dated 1.8.1986 the defendants- Respondents is exclusive owner and mutation No.12652 has been rightly sanctioned ? (iv) Whether the present suit is maintainable in the absence of legal representatives of Harchandi having been impleaded in the suit ? (v) Whether the Plaintiffs-Respondents have no locus standi to file the suit having not prayed for possession of the suit land ? (vi) Whether by inference the plaintiff can be held to be co-sharer, in the absence of specific issue in this regard being struck/claimed by the plaintiff ? CM No.6879-C of 2008 :3: RSA No.2314 of 2008 (O & M) The only question argued by learned Senior Advocate is question No.(iv). In this connection, it has to be noticed that in the year, 1985 for the first time, the suit land was shown as Aaraji Matruka Gair Allotshuda Mortgagor. It is argued that on seeing the discrepancy in the Revenue Record, the predecessor-in-interest of the appellants moved an application before the Revenue Authorities claiming that he was the sole mortgagee and the land could not have been shown as Aaraji Matruka Gair Allotshuda Mortgagor. That application having been allowed as per learned Senior Advocate, it is conclusive proof that Chhote Lal was the only mortgagee. However, it cannot be disputed that prior to the change of entry in the year, 1985, both Harchandi and Chhote Lal have been shown as co-mortgagees. Learned counsel also frankly conceded that in the proceedings initiated before the Revenue Authorities, Harchandi was not impleaded as party. In the absence of Harchandi, any order passed in favour of the predecessor-in-interest of the appellants, could not effect the rights of Harchandi. Once, the order dated 04.08.1986 is held to be non- effectual against the rights of the appellants, the question arises as to whether the respondents have proved that their predecessor-in-interest was a co-mortgagee. It is noteworthy to mention that there is no document related to the original mortgage on record. The Courts below have relied upon the old Revenue Record, which is roznamcha wakyati for the year 1950-51 as well as the mutation and the Revenue Record to hold that the both the persons i.e. Chhote Lal and Harchandi were co-mortgagees. Learned Senior Counsel has not been able to persuade me that this finding is either based on no evidence or on such perverse misreading of the evidence so as to be liable for interference CM No.6879-C of 2008 :4: RSA No.2314 of 2008 (O & M) under Section 100 CPC. In these circumstances, holding all the questions proposed against the appellants, this appeal as well as the application for stay along with Civil Miscellaneous Application, if any, stands disposed of. March 9, 2010 (AJAY TEWARI) Sukhpreet JUDGE