R.S.A. No. 963 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 963 of 2008 Date of Decision: 3.03.2009 Virender Singh @ Birender Singh .....Appellant. versus Smt. Birma Devi and others ....Respondents CORAM: HON'BLE MR.JUSTICE AJAY KUMAR MITTAL. Present: Mr. Atul Lakhanpal, Senior Advocate with , Mr. R.S.Chahal, Advocate for the appellant. **** AJAY KUMAR MITTAL, J. This regular second appeal filed by defendant No.1, who is step-son of the plaintiff, is directed against the judgment and decree dated 26.2.2008 passed by the District Judge, Fatehabad, whereby the appeal filed by him against that of the Additional Civil Judge (Senior Division), Fatehabad was dismissed and the cross-appeal filed by his step mother (plaintiff) was allowed besides dismissing the cross- objections filed by the bank. Put shortly, the facts of the case are that the plaintiff Smt. Birma Devi filed a suit for declaration to the effect that she was owner in possession of land measuring 50 kanals 12 marlas, fully detailed in the head note of the plaint, and that mortgage of the said land along with R.S.A. No. 963 of 2008 -2- other land by defendant No.1 in favour of the Banks-defendants No.2 and 3 was null and void and not binding on her; and as a consequential relief, she sought a decree for permanent injunction restraining defendant No.1 from alienating the suit land. It was pleaded that her husband, late Hari Singh, was owner in possession of the land measuring 101 kanals 4 marlas which was his ancestral property. He transferred his entire land in favour of his son, defendant No.1, by way of two judgments and decrees dated 8.4.1993 passed in civil suit Nos. 218 and 219 of 1993. A dispute arose between the plaintiff and defendant No.1 which was resolved in a family settlement wherein defendant No.1 agreed to transfer the suit land in favour of the plaintiff and in pursuance thereto also got the judgment and decree dated 6.11.1993 passed in Civil Suit No. 1390 of 1993 titled as “Smt. Birma Devi Vs. Birender Singh” in her favour, but he in connivance with the village Patwari, did not allow the revenue entries to be corrected accordingly. Thereafter, defendant No.1 mortgaged the suit land in favour of defendants No.2 and 3 as per entries Nos. 656 and 288 in roznamcha dated 25.4.1998 and 5.5.1998, respectively. According to the plaintiff, defendant No.1 was not competent to mortgage the suit land as he was not in possession of the same; no notice of the mortgage had been issued to the plaintiff; and defendants No.2 and 3 had colluded with defendant No.1 as they had not enquired into the title of the land and had acted illegally. The plaintiff requested defendant No.1 to admit her claim but he refused to do so which gave rise to the filing of the suit for declaration and permanent injunction. Upon notice, defendant No.1 filed a counter-claim and R.S.A. No. 963 of 2008 -3- written statement pleading that the judgment and decree dated 6.11.1993 passed in civil suit No. 1390 of 1993 titled as “Smt. Brima Devi v. Birender Singh” was illegal, null and void. It was pleaded that no family settlement took place between him and the plaintiff as she had no pre-existing right in the suit land. The impugned decree dated 6.11.1993 was not registered and, therefore, the same did not confer any right or title upon the plaintiff. It was further pleaded that his father, late Shri Hari Singh, had voluntarily suffered a decree dated 8.4.1993 in his favour and the revenue records show his ownership and possession over the entire land of his father. According to defendant No.1, he being the owner of the suit land was entitled to mortgage the same with defendants No.2 and 3. Besides raising various preliminary objections, a prayer for dismissal of the suit was made. Defendant No.3 was proceeded against exparte whereas defendant No.2 filed a written statement raising various preliminary objections. It was pleaded that defendant No.1 had taken a loan from defendant No.2 by mortgaging the suit land and the loan had been sanctioned after verification of the records in which defendant No.1 was found to be owner in possession of the suit land. It was further pleaded that the mortgage deed dated 21.4.1998 was duly registered with the concerned Sub-Registrar and had been entered in the revenue record. According to defendant No.2, defendant No.1 had also hypothecated the tractor to secure the loan. Defendant No.2 made a prayer for dismissal of the suit. The trial Court on appreciation of the oral as well as the documentary evidence led by the parties held that the plaintiff was R.S.A. No. 963 of 2008 -4- owner of the suit land but it was defendant No.1 who was in possession thereof. It was further held that the impugned decree dated 6.11.1993 was legal and valid and was binding on defendant No.1. The trial court also held that the counter claim of defendant No.1 was maintainable to the extent that the plaintiff was restrained from interfering in his possession over the suit land except in due course of law and his claim for setting aside the impugned decree was held to be barred by limitation. Accordingly, the trial court vide judgment and decree dated 25.1.2006 partly decreed the suit of the plaintiff holding her entitled to the correction of revenue entries regarding ownership of the suit land. The counter claim filed by defendant No.1 was also partly decreed restraining the plaintiff from dispossessing him from the suit land except in due course of law. Feeling aggrieved, the plaintiff and defendant No.1 filed cross appeals whereas defendant No.2-bank filed two cross-objections. The lower appellate court vide judgment and decree dated 26.2.2008 allowed the appeal filed by the plaintiff holding her to be owner in possession of the suit land and dismissed the appeal filed by defendant No.1 and the cross-objections filed by defendant No.2. Hence, the present appeal by defendant No.1. I have heard learned counsel for the appellant and have perused the record with his assistance. The lower appellate court while allowing the appeal of the plaintiff recorded a finding that she was owner in possession of the suit land and the mortgage of the suit land owned by the plaintiff at the behest of defendant No.1 in favour of defendants No.2 and 3 was not R.S.A. No. 963 of 2008 -5- valid. It was further held that the plaintiff had pre-existing right in the suit land, therefore, the impugned decree whereby the suit land was transferred in her favour did not require any registration. Learned counsel for the appellant could not point out any illegality or perversity in the judgment and decree passed by the lower appellate court which may warrant interference by this Court in the regular second appeal. The appellant-defendant No.1 has miserably failed to prove that plaintiff had obtained the decree in question by playing fraud and misrepresentation upon him as he did not mention the particulars of the alleged fraud and in his cross-examination had himself admitted that at the time of filing the written statement and making statement on oath in the court, admitting the claim of the plaintiff, he was in his senses. In these circumstances, no question of law much less the substantial question of law arises in this appeal for consideration of this Court. In view of the above, the present appeal fails and the same is hereby dismissed with no order as to costs. March 3, 2009 (AJAY KUMAR MITTAL) gbs JUDGE