R.S.A. No. 4758 of 2010 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH -.- R.S.A. No. 4758 of 2010 (O&M) Date of decision:- 13.12.2010 Mukesh ... Appellant Versus Bhawna & Ors. ... Respondents CORAM:- HON'BLE MR. JUSTICE GURDEV SINGH Present:- Mr. Vivek Khatri, Advocate, for the appellant. Mr. Sunil Chadha, Advocate, for caveator-respondent No.1. Gurdev Singh, J (oral) This is the second appeal preferred by the appellant/plaintiff- Mukesh. He filed suit for permanent injunction restraining the respondents/defendants from dispossessing him from the shop in dispute forcibly and illegally on the ground that he was coming in possession of that shop as mortgagee by virtue of the mortgage deed dated 17.4.1996 executed by defendant no.1. Challenge to that mortgage deed by the defendants was that the same was false, fabricated and forged document and that on the date the same is alleged to have been executed, defendant No.1 was minor. The suit was decreed by the trial Court after recording the findings that the mortgage deed was duly executed by defendant No.1 while she was major and that the plaintiff was coming in possession of the land in dispute as mortgagee. However, in the first appeal preferred by defendant No.1 the finding of the trial Court that she was major at the time of execution of the mortgage deed, was set aside. On the basis of the evidence produced by the parties, the first Appellate Court came to the conclusion that the date of R.S.A. No. 4758 of 2010 (O&M) -2- birth of defendant No.1 was 19.12.1979 and that at the time mortgage deed was executed, she was not major and as such is not bound by the same. It is pertinent to note that defendant No.1 made a counter claim claiming the possession of the shop in dispute on the ground that the plaintiff is coming in illegal possession thereof. That counter-claim was dismissed by the trial Court, but was accepted by the first Appellate Court. It has been submitted by learned counsel for the plaintiff that the finding recorded by the first Appellate Court that defendant No.1 was minor on the date of execution of the mortgage deed, cannot be sustained in the absence of any reliable evidence. According to him the finding was recorded on the basis of the school certificate Ex.D/2, which was never properly proved and no finding could have been recorded on the basis of such a certificate and as such substantial question of law arises in the present appeal is: “as to whether defendant No.1 was able to prove on the record that she was minor at the time of execution of mortgage deed?”. In support of his contentions he tried to place reliance on the following judgments:- 1. Des Raj Vs. Bodh Raj, 2008(1) RCR (Civil) 212 (SC) 2. Ravinder Singh Gorkhi Vs. State of U.P., 2006(3) RCR (Civil) 45 (SC) 3. Thiruvengada Pillai Vs. Navaneethammai & anr. 2008(2) RCR (Civil) 262 (SC) 4. Karnail Singh Vs. M/s Kalra Brothers, Sirsa 2009(2) RCR (Civil) 380 (P&H) 5. Bawa Singh and others Vs. Harman Singh and Ors., 2009(5) R.S.A. No. 4758 of 2010 (O&M) -3- RCR (Civil) 183 (P&H) 6. Greaves Ltd. Vs. V.S.Raghavan and another, 2007(2) RCR (Rent)60 (Madras) 7. Smt. J. Yashoda Vs. Smt. K.Shobha Rani 2007(2) RCR (Civil) 840 (SC) Defendant No.1 herself entered the witness box as DW1 and specifically stated that she was born on 19.12.1979. That fact could not be challenged by the plaintiff during her cross-examination nor any evidence was produced in rebuttal. The school certificate Ex.D/2 has also remained unrebutted. Learned counsel for the appellant has tried to assail that school certificate and the mode of proof thereof in view of the ratio of the judgments cited by him. Even if this school certificate is ignored, in view of the judgments cited by learned counsel for the appellant, even then there is unchallenged and unrebutted statement of defendant No.1 for proving that she was minor on the date the mortgage deed was executed. No substantial question of law arises in the present appeal. The same is dismissed accordingly. December 13, 2010 (Gurdev Singh) tripti Judge