RSA No.1596 of 1986 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1596 of 1986 Date of decision:25.5.2011 Mohinder Singh and others ...Plaintiffs/Appellants Versus Kartar Singh and others .Defendants/Respondents CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present: Mr.G.S.Punia, Advocate, for the appellants. Mr.Kabir Sarin, Advocate, for the respondents. -.- JITENDRA CHAUHAN, J. The present appeal is directed against the judgment and decree dated 23.1.1986, passed by the learned Additional District Judge, Faridkot, whereby the judgment and decree dated 18.7.1983, dismissing the suit of the plaintiff by the learned trial Court was maintained. The following pedigree table. Ex. P.4/A, shall help in better appreciation of facts:- Jora Singh | Prema (Mortgagor) | Dara Singh =Sant Kaur (widow of Dara Singh) (deceased-plaintiff) | ________________________________________________ Pal Kaur | | Sham Kaur Balbir Singh Jagir Singh Mohinder Kaur (defendant No.3) (Deceased-defendant 4) (Not impleaded) | | | __________________________ __ ___|_ | Smt Ranjit Kaur widow Mohinder Singh Guddi Jit Singh Nikki Nachhatar Singh Chotte Kharak Singh Bhupinder Kaur (Sons/Appellants herein) ( Daughters/Respondents 4 to 8 herein) 1 RSA No.1596 of 1986 __________________________________________________________________ Masania | Ratna (Mortgagee) | _____________________________ | | | Bhola Ram Nihal Ram Budh Ram | | Nand Ram= Bhagwanti | | ___________________________ | | Partap Ram Chotu Ram=Rajji (widow) ______________________________________________________________________ Phuman Singh | Kartar Singh (defendant/Respondent No.1. | Mangal Singh(defendant/Respondent No.2) The brief facts of the case are that Prema was the owner of the property consisting one Haveli (Ahata No.1259) (0K-8 ½ M) (221 sq.) and Ahata No.1260 (0K-5M) (127 sq.) situated in Agwar Thara, Kotakapura, Tehsil Faridkot. The case, as set up by the plaintiffs, is that the said property was originally owned by their grand-father Prema (mortgagor) son of Jora Singh, who mortgaged with possession Ahata No.1259 for Rs.70/- and Ahata No.1260 for Rs.180 with one Shri Ratna son of Masania. The plaintiffs further averred that after the death of Prema (Mortgagor), the right of redemption was inherited by his son Sh.Dara Singh @ Dari and after his death, it passed on to his widow Smt. Sant Kaur, plaintiff, (since deceased) and his sons Balbir Singh, defendant No.3 and Jagir Singh, defendant No.4 (since deceased). The mortgagee Rattna died and, therefore, the plaintiff, defendant No.3-Balbir Singh and defendant No.4-Jagir Singh got redeemed the property in dispute from the legal heirs of Rattna i.e. Smt. Bhagwanti widow of Nand Ram, Partap Ram and Rajji widow of Chhotu Ram. The possession of the property in dispute was delivered to the plaintiff and defendant Nos. 3 and 4 at the time of redemption. The plaintiffs 2 RSA No.1596 of 1986 averred that the defendants Kartar Singh and Mangal Singh had taken illegal possession of the property in dispute about 8 years ago, before the filing of the suit and raised construction thereon despite their objections. Hence, the present suit for possession was filed The defendant Nos. 1 and 2 contested the suit on the ground that Prema was neither the owner of the suit property nor he mortgaged it in favour of Rattna with possession. They also denied the averments made in the plaint that the plaintiff and her sons got redeemed the property in dispute from the legal heirs of Rattna. They have been in continuous and peaceful possession as owners for the last 60 years. They also pleaded that earlier on the same ground the family members of the plaintiff filed the suits which were dismissed. The defendants also pleaded that they raised construction in the presence of the plaintiff. After considering the entire evidence, the learned trial Court vide judgment and decree dated 18.7.1983 dismissed the suit of the plaintiffs.Durig the pendency of the civil suit Smt Sant Kaur, plaintiff, died and the present appellants, sons of Jagir Singh defendant no.4 persued the suit as legal representatives of the deceased plaintiff. In the suit Balbir Singh and Jagir Singh, the sons of the plaintiff were impleaded as defendants no.3 and 4 respectively. Feeling aggrieved by the judgment and decree of the learned trial Court, Mohinder Singh, Jit Singh, Nachhatar Singh and Kharak Singh sons of Jagir Singh preferred an appeal, which was also dismissed by the learned Ist Appellate vide judgment and decree dated 23.11.1986. Hence, the present appeal, which was admitted by this Court on 28.7.1986. 3 RSA No.1596 of 1986 Learned counsel for the plaintiffs/appellants has submitted that as per the copy of entry in the Register of Khasra Abadi, Exhibit P1, it is established that Prema (since deceased) was the occupier of the property in dispute and he mortgaged Ahata No.1259 on 22 Pos 1943 B.K and Ahata No.1260 on 1 Asuj 1945 B.K. He has also submitted that once relationship of mortgagor and mortgagee comes into existence, mortgagee cannot deny the title of the mortgagor. It has also been submitted that vide receipts, Exhibits P1/A, P2/A and P3/A, it is sufficiently proved that the property in dispute was got redeemed by Balbir Singh, defendant No.3, and therefore, the respondents have no concern whatsoever with the suit land. On the other hand, the learned counsel for the respondents has submitted that it is not established that the plaintiffs/appellants are owners of the property in dispute. Exhibits P1/A, P2/A and P3/A, also do not help the plaintiffs as the same are inadmissible in evidence. The appellants are estopped from agitating the matter in this regular second appeal. I have heard the learned counsel for the parties and perused the record with their able assistance. The short question arises for determination in this appeal is that as to “Whether the appellants are estopped from pursuing this regular second appeal.” First this court is going to deal with the question of mortgage, and the redemption thereof. To prove the fact of mortgage of the suit property by Prema in favour of Ratna (both deceased), the plaintiff has placed reliance on the entry mentioned in the Register of Khasra Abadi, Exhibit P3, which suggests that Prema, mortgaged the property in dispute on 6.1.1887 and 15.9.1888. Now, the question arose whether the property 4 RSA No.1596 of 1986 in dispute was got redeemed by Balbir Singh or not. On this aspect, the appellants placed reliance on the receipts, Exhibits P1/A, P2/A and P3/A, which had been issued by Rajji, Partap Ram and Bhagwanti (legal representatives of Rattna) to Balbir Singh, defendant No.3, after receiving the mortgage amount. However, on perusal of these receipts, it is clearly made out that the same were not registered. Balbir Singh, who allegedly got the property redeemed has not come into the witness box to support the receipts. These receipts are not written by a regular document writer. In the circumstance, this court agree with the findings recorded by the courts below that the said receipts are inadmissible in evidence for want of registration. These receipts are unstamped. No formality of making these unstamped receipts admissible in evidence under section 35(b) of the Indian Stamp Act was carried out by the plaintiff. Therefore, these receipts cannot be read in evidence. No document of mortgage deed has been brought on record. The statement of Smt Raji PW 4 will not be of much help to the plaintiff as the third parties are in possession of the property. In the column of ownership of khasra girdawari Ex.P.1, the disputed property is shown as “Sarkar Daulat Madar”. Prema, the Mortgagor, is only shown as occupier of the property in Ex.P.1, khasra girdawari. When Prema himself is not owner of the property, he had no right to mortgage it to Ratna. The receipts of redemption dated 25.12.1970 stand already disbelieved in an earlier suit, filed by Balbir Singh vide judgment Ex.D.1, which was affirmed by this Court in Regular Second appeal No.1553 of 1979, decided on 22.8.1979. So, it is held that neither the mortgage nor its redemption is proved on record. The learned Ist Appellate Court has rightly come to the conclusion that the receipts seem to have been brought into existence with some malafide intention. 5 RSA No.1596 of 1986 There is another strong circumstance against the plaintiff and successors in interest of the mortgagor. It is pleaded in the written statement that Dara alias Dari husband of the present plaintiff Smt Sant Kaur filed a civil suit in the year 1952, against Kartar Singh and others, which was dismissed on 20.2.1953. But no such copy of the judgment has been brought on record. Balbir Singh son of the present plaintiff also filed a Civil Suit No.101/329 on 22.3.1975, which was dismissed on 18.5.1978, by Sub Judge, Ist class, Faridkot. In that suit, one of the prayer was for possession of the residential site and Haveli comprising in Ahata 1259/0-8,1/2 marlas (220 sq.yd); 1260/05 (127 sq.yds) situated within the khasra abadi, Kotakpura. Copies of the judgment and decree sheet are Ex.D.1 and Ex.D.2 respectively. The first appeal filed by Balbir Singh was also dismissed on 17.5.1979 by the District Judge, Faridkot.Thereafter, said Balbir Singh filed Regular Second Appeal No.1553 of 1979, which was also dismissed on 22.8.1979, by this Court vide Judgment Ex.D.12.This judgment became final between the parties. It appears that having lost te legal battle upto the High Court regarding possession of the property, Balbir Singh and Jagir Singh, sons of the deceased plaintiff Smt Sant Kaur got filed this suit again on the same and similar grounds in which almost same set of oral and documentry evidence was led. Balbir Singh was the plaintiff while his brother Jagir Singh was defendant in that suit. Earlier judgment Ex.D.1, and decree sheet Ex.D.2, which were affirmed upto this Court vide Judgment Ex.D.12, are binding not only on Balbir Singh and Jagir Singh but are also binding on the legal heirs of deceased Jagir Singh, who are the present appellants in this Regular Second Appeal. The judgment and decree are legally binding on the proforma defendant. The present appellants stepped into the shoes of their father Jagir Singh and are now estopped from 6 RSA No.1596 of 1986 pursuing the present Regular Second Appeal. The legal representatives of Prema mortgagor have no right to reagitate the matter time and again. The present appellants are estopped from pursuing this appeal. This Court, after taking the entire record into consideration, is of the view that the findings of both the courts below are well reasoned and based on correct appreciation of documentary and oral evidence. No substantial question of law arises for determination in the second appeal. There is no scope to interfere in concurrent findings of facts recorded by the courts below. In Madvan Nair V. Bhaskar Pillai, (2005) 10, SCC 533, Harjeet Singh v. Amrik Singh, (2005) 12 S.C.C. 270, H.P. Pyareja v. Dasappa, AIR 2006 SC 1144: (2006) 2 SCC 496, and Gurdev Kaur and others v. Kaki and others, J.T. 2006(5) S.C. 72, while interpreting the scope of Section 100 of the Code of Civil Procedure, the principle of law, laid down, was that the High Court, has no jurisdiction to interfere with the findings of fact, arrived at by the trial Court, and the first Appellate Court, even if, the same are grossly erroneous, as the legislative intention was very clear that the legislature never wanted second appeal to become a “third trial on facts” or “one more dice in the gamble.” It was further held that the jurisdiction of the High Court in interfering with the judgments of Courts below, is confined only to the hearing of substantial questions of law. In view of the above, no interference is called for in the concurrent findings of facts recorded by the courts below. Accordingly, the instant appeal is dismissed with no order as to costs. 25.5.2011 (JITENDRA CHAUHAN) mk JUDGE Note: Whether to be referred to the Reporter? Yes 7