R. S. A. No. 2747 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2747 of 2010 Date of Decision : February 14, 2011 Hardit Singh .... Appellant Vs. Kamaljit Kaur .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Arun Palli, Senior Advocate with Mr. Kanwal Goyal, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : Defendant Hardit Singh, having failed in both the courts below, has filed the instant second appeal. By this common judgment, I am also disposing of R. S. A. No. 2748 of 2010 titled Birinder Kaur vs. Amrit Singh in addition to the instant R. S. A. No. 2747 of 2010 titled Hardit Singh vs. Kamaljit Kaur. R. S. A. No. 2747 of 2010 has arisen out of suit filed by Pritam Singh Sekhon (since deceased and represented by his daughter and legal representative Kamaljit Kaur – respondent) relating to half share of Kothi R. S. A. No. 2747 of 2010 2 no.31-B, Badungar, Tehsil and District Patiala, whereas R. S. A. No. 2748 of 2010 has arisen out of suit filed by Amrit Singh Sekhon (who is son of Pritam Singh Sekhon aforesaid and brother of Kamaljit Kaur aforesaid) against Birinder Kaur – appellant/defendant, who is mother of Hardit Singh – appellant of the other case, regarding half share of the same kothi. Both the suits were filed for possession by redemption of the suit property. Facts in both the cases are identical. Facts are being taken from R. S. A. No. 2747 of 2010. The plaintiff alleged that being owner of the suit property i.e. half share of the kothi, he mortgaged the same with defendant with possession vide mortgage deed dated 15.09.1992 for Rs.1,50,000/-. Additional mortgage for Rs.55,000/- vide mortgage deed dated 22.04.1993 and further additional mortgage for Rs.1,00,000/- vide mortgage deed dated 25.05.1996 was also created. The total mortgage money was thus Rs.3,05,000/-. On demand, the defendant refused to redeem the mortgage necessitating the filing of the instant suit for possession of the mortgaged property by redemption of the mortgage. Defendant Hardit Singh alleged that he has been tenant in the entire kothi on rent since the year 1988. Factum of mortgagees in both the suits in favour of Hardit Singh and his mother Birinder Kaur (defendant of the other suit) was admitted. However, it was pleaded by defendant Hardit Singh that on redemption, his tenancy would revive. Various other pleas R. S. A. No. 2747 of 2010 3 were also raised. Learned Civil Judge (Senior Division), Patiala, vide separate judgments and decrees dated 18.12.2007, decreed both the suits. First appeals preferred by defendants of both the suits have been dismissed by learned Additional District Judge, Patiala vide separate judgments and decrees dated 13.03.2010. Feeling aggrieved, defendants of both the suits have filed the instant second appeals. I have heard learned counsel for the appellants and perused the case files. Learned counsel for the appellants vehemently contended that Mohinder Kaur (PW-3) – wife and attorney of Pritam Singh Sekhon – plaintiff stated that the suit property was on rent with military authorities since the year 1982 till the year 1992 and therefore, the same could not be on rent with the defendant since the year 1988, but no documentary evidence regarding the suit property being on rent with military authorities has been produced by the plaintiffs, although Mohinder Kaur claimed that some writing in this behalf was in their possession. The contention appears to be forceful on first blush, but the contention cannot come to the rescue of the appellant. At best, adverse presumption can be drawn against the plaintiffs on the basis of aforesaid contention and it may be presumed that tenancy in favour of military authorities is not proved. However, it will authomatically not prove tenancy in favour of Hardit Singh defendant since R. S. A. No. 2747 of 2010 4 the year 1988. There is no documentary evidence whatsoever led by the defendants in support of the alleged tenancy of Hardit Singh. In the aforesaid context, it is significant to notice that Hardit Singh claims his tenancy since the year 1988, whereas the first mortgage deeds are dated 15.09.1992. If Hardit Singh defendant had been tenant in the suit property since the year 1988 i.e. for four years before the first mortgage deeds, this fact would have been specifically recited in the said mortgage deeds. However, there is no such recital in the mortgage deeds. Rather there is recital in the mortgage deeds that possession was being delivered to the defendants of both the appeals. This recital further rules out the alleged tenancy of Hardit Singh since the year 1988. It may also be added that on the inception of tenancy, the landlord being in dominant position, may some time force the tenant to execute a sham deed because the tenant is in subservient position and would like to accept any condition while in need of the premises. In the instant case, however, the mortgage deed was not executed at the time of creation of alleged tenancy. Consequently, at the time of execution of mortgage deeds, if Hardit Singh was already tenant, he would have refused to execute the mortgage deeds if the same were meant to camouflage the tenancy. Learned counsel for the appellants lastly contended that the appellant had moved application Annxure A-1 for additional evidence in the lower appellate court, but the same has not been decided and therefore, the R. S. A. No. 2747 of 2010 5 case requires to be remanded to the lower appellate court. Again, the contention appears to be prima facie attractive, but on proper scrutiny, the same cannot be accepted. By way of additional evidence, the appellant wants to produce income tax returns of Pritam Singh Sekhon – original plaintiff since the year 1988 to 1992 to depict receipt of rent from the appellant. However, application Annexure -1 was neither verified nor supported by any affidavit. No document in support of the application has either been produced. It is also not mentioned that receipt of rent has been depicted in the income tax returns from Hardit Singh – defendant/appellant. Mere depiction of receipt of some rent in income tax returns would also not prove alleged tenancy in favour of appellant Hardit Singh. Moreover, no reason has been assigned in the application Annexure A-1 as to why the proposed additional evidence was not produced in the trial court at the appropriate stage. It has been vaguely alleged that appellant has now come to know that receipt of rent has been depicted by Pritam Singh Sekhon in his income tax returns. However, the same fact could be known to the appellant even in the trial court at appropriate stage from the same source from which he might have learnt of it during the pendency of the first appeal. It may be added that no such source has been disclosed in the application Annexure A-1 as to how at that stage the appellant learnt of this fact. Thus, examined from any angle, application for additional R. S. A. No. 2747 of 2010 6 evidence moved in the first appeal could not have been allowed. The same is accordingly dismissed. For the reasons aforesaid, I find no merit in both the instant second appeals. Concurrent finding of fact recorded by both the courts below against the appellants regarding alleged tenancy does not warrant any interference in second appeals as the said finding is not shown to be perverse or illegal in any manner nor the same is based on misreading or misappropriation of evidence. On the contrary, the said finding is fully justified by the evidence on record and is supported by detailed reasons recorded by the courts below. In fact, the appellants have miserably failed to prove the alleged tenancy of appellant Hardit Singh in the suit property. In the absence thereof, suits for redemption of mortgagees have been rightly decreed because factum of mortgages was not disputed. Consequently, both the appeals are devoid of any merit and are accordingly dismissed in limine. February 14, 2011 ( L. N. MITTAL ) monika JUDGE