Regular Second Appeal No.3893 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.3893 of 2008 Date of Decision: 9.8.2011 Gian Chand and others ...Appellants Versus Chattar Singh and others ...Respondents CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR Present:- Mr.Akshay Bhan, Advocate for the appellants. Mr.Raj Mohan Singh, Advocate for the respondents. M ehinder S ingh S ullar , J . (Oral) The crux of the facts, culminating in the commencement, relevant for the limited purpose of deciding the core controversy, involved in the instant regular second appeal and emanating from the record, is that Gian Chand and his brothers, sons of Beni Parshad appellant-plaintiffs (for short “the plaintiffs”), filed the suit and sought a decree for declaration to the effect that they became the owners and in possession of the land measuring 2 Bighas 2 Biswas, being 42/251th share in the suit land, situated within the revenue estate of village Dharamkot, Tehsil Jagadhri, District Yamunanagar, by afflux of time and the sale deeds dated 31.12.1999 and 25.1.2000 (Ex.P3 and Ex.P4), executed by Dharam Pal and Barkha Ram proforma respondent Nos.2 and 3-defendant Nos.1 and 2, in favour of Chattar Singh respondent No.1-defendant No.3 (for brevity “the defendants”) are wrong, illegal, null, void and not binding on their (plaintiffs) rights, with a consequential relief of permanent injunction, restraining the defendants from interfering in their peaceful possession and alienating the land in dispute in any manner. 2. The case set up by the plaintiffs, in brief in so far as relevant, was that Chuhar Singh, father of defendant Nos.1 and 2, had mortgaged the land in Regular Second Appeal No.3893 of 2008 -2- dispute with possession, for a total sum of ` 300/- to Mangal Sain son of Madho Dass, real brother of grand-father of the plaintiffs, as per mutation bearing No.1151 dated 4.9.1961 (Ex.P1) sanctioned on 25.9.1961. As Mangal Sain died issue less, therefore, he executed a Will in favour of the plaintiffs and after his death in the year 1970, they inherited his property, including the mortgagee rights, on the basis of the Will. According to the plaintiffs that after the death of Chuhar Singh, his property was inherited by defendant Nos.1 and 2 and they did not get the land redeemed within a stipulated period of 30 years. 3. Levelling a variety of allegations and narrating the sequence of events, in all, the plaintiffs claimed that since the defendants did not get the land redeemed within the period of 30 years, so, they (plaintiffs) became its owners by afflux of time. Thus, the impugned sale deeds (Ex.P3 and Ex.P4) executed by defendant Nos.1 and 2 in favour of defendant No.3, are termed to be null and void. The plaintiffs asked the defendants to admit their claim, but in vain, which necessitated them to file the present suit. On the basis of aforesaid allegations, the plaintiffs filed the suit seeking a decree for declaration and permanent injunction against the defendants, in the manner depicted hereinbefore. 4. The defendants contested the suit and filed their written statement, in which, it was admitted that Chuhar Singh had mortgaged the disputed land with possession for a consideration amount of ` 500/- (not ` 300/- as claimed by the plaintiffs). According to the defendants that Chuhar Singh had got the suit land redeemed, as per the order dated 18.10.1976 (mark-B) passed by the Collector after depositing ` 500/- as mortgaged money. The possession has also been taken back by the owners, as per the daily diary report dated 25.5.1977 (Ex.D1). It was explained that the plaintiffs have also purchased the share of Smt.Gaindi, real sister of Chuhar Singh, out of the land in dispute. Thereafter, they filed an application for partition of the joint land, including the suit land. The plaintiffs are not in possession of the land in question. In this manner, the defendants claimed Regular Second Appeal No.3893 of 2008 -3- that the suit land already stands redeemed and the plaintiffs have got no right, title or interest in it. It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit. 5. Controverting the allegations of the written statement and reiterating the pleadings contained in the plaint, the plaintiffs filed the replication. In the wake of pleadings of the parties, the trial Court framed the necessary issues for proper adjudication of the case. 6. In order to substantiate their respective pleaded stands, the parties to the lis, produced on record the oral as well as documentary evidence. 7. The trial Court decreed the suit of the plaintiffs, by virtue of judgment and decree dated 1.9.2006. 8. Aggrieved by the decision of the trial Court, Chattar Singh son of Gaje Singh vendee (defendant No.3) filed the appeal, which was accepted by the 1st Appellate Court, by way of impugned judgment and decree dated 12.9.2008. 9. The appellant-plaintiffs did not feel satisfied with the impugned judgment and decree of the 1st Appellate Court and preferred the present regular second appeal. That is how I am seized of the matter. 10 After hearing the learned counsel for the parties, going through the record with their valuable help and after considering the entire matter deeply, to my mind, there is no merit in the instant appeal in this context. 11. Ex facie, the celebrated argument of the learned counsel that since the mutation Nos.134 and 135 and order (mark-B) are not legally proved and cannot be looked into evidence, so, the Ist Appellate Court committed a legal mistake in dismissing the suit of the plaintiffs, lacks merit. 12. It is not a matter of dispute that in the wake of application under Order 41 Rule 27 CPC, Chatar Singh defendant No.3 was permitted to produce certified copies of mutation Nos.134 and 135, which were entered/sanctioned on Regular Second Appeal No.3893 of 2008 -4- 25.8.1967. The plaintiffs did not deny the genuineness of these mutations, but pleaded in the reply that the same cannot be permitted to place on record at this belated stage under Order 41 Rule 27 CPC. As defendant No.3 has produced the certified copies of these mutations and order (Mark-B), which are more than 30 years old, therefore, the same are admissible in evidence, particularly when the mutation bearing No.135 dated 25.8.1967 (Ex.P5) was also incorporated/reflected in the order dated 18.10.1976 (mark-B) of the Collector. 13. As is evident from the record/mutation Nos.134 and 135, coupled with the order dated 18.10.1976 (mark-B) that the property in dispute was mortgaged for a sum of ` 300/-, by means of mutation No.1151 (Ex.P1) and the suit land had already been redeemed after payment of mortgaged money. The second mortgage created for ` 500/- also stood redeemed, by way of mutation No.135 (Ex.P5), which is duly reflected in the order (mark-B). The plaintiffs have concealed the fact of redemption and illegally claimed ownership of the mortgaged property by afflux of time, which already stood redeemed. 14. Meaning thereby, it stands proved on record that even second mortgage stood redeemed after payment of ` 500/-, vide order (mark-B) and possession was returned back to the original owner. Therefore, to me, the first appellate Court has rightly negatived the claim of the plaintiffs in this respect, by virtue of impugned judgment dated 12.9.2008, which, in substance, is (paras 10, 11 and 12) as under:- “10. As regards the appeal, it is rightly argued by the counsel for the appellant that it is clear from mutation No.134 that Chuhar Singh had already mortgaged 3/28 share of his land in favour of Mangal Sain out of the total land measuring 19B-17B and the said mortgage was redeemed on payment of Rs.300/- regarding which entry was made by the Patwari in the register on 15.8.1967. The mutation was, however, sanctioned on 25.8.1967 alongwith the other mutation No.135. The other mutation showed that mortgage for Rs.500/- was created with regard to the same land by Chuhar Singh in favour of Mangal Sain. It was argued that there Regular Second Appeal No.3893 of 2008 -5- were actually two mortgages one had earlier been created for Rs.300/- which was redeemed as per the mutation qua that i.e. mutation No.134 and on 20.8.1967 fresh mortgage regarding the same land was created in favour of the same person for Rs.500/- regarding which entry on that date was made by the Patwari. The mutation regarding redemption of the previous mortgage and creation of the second one were both sanctioned on the same date. 11. Reference was also made by the counsel for the appellant to the order dated 18.10.1976 which was produced as Mark B in which the mention of mutation No.135 dated 25.8.1967 was made and it was held that the mortgage stood redeemed on payment of Rs.500/-. The mortgagor was ordered to be put in possession. The order was passed in petition filed by Chuhar Singh against the mortgagees. 12. Counsel for the respondents, however, argued that the appellant was trying to create some confusion about the facts because originally the mortgage was created as per mutation No.1151 where Mangal Sain was shown to be a mortgagee and that mortgage was not redeemed at any time either by Chuhar Ram or by his sons and, therefore, the plaintiffs became owners after expiry of the statutory period of thirty years. The mortgage was created for a sum of Rs.300/-. This argument, however, is not acceptable because no confusion has been created by the appellant regarding any fact. It is not denied by the appellant that the mortgage was originally created vide mutation No.1151 for Rs.300/- and that is why it is the case of the defendants that the said mortgage had been redeemed vide mutation No.134. The said mutation shows that the mortgage which was created for Rs.300/- stood redeemed. The second mortgage which was created for Rs.500/- also stood redeemed as per the order dated 18.10.76. Rather the plaintiffs concealed the fact that Mangal Sain had got two mortgages created in his favour, the second one having been created after redemption of the first one.” 15. The learned counsel for the appellant-plaintiffs did not point out any material, much less cogent, to show as to how and in what manner, the impugned judgment and decree of Ist appellate Court are illegal and would invite any interference in this relevant connection. 16. Not only that, the Ist appellate Court has taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the Regular Second Appeal No.3893 of 2008 -6- right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the first Appellate Court has recorded the above- mentioned findings of fact. Such pure findings of fact based on the appraisal of evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the learned counsel for the appellants, so as to take a contrary view, than that of well reasoned decision already arrived at by the Ist appellate Court, in this regard. 17. No other meaningful argument has been raised by the learned counsel for the appellants to assail the findings of the first appellate Court in this regard. All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellants, in this relevant direction, have already been duly considered and dealt with by the Ist appellate Court. 18. Thus, since no question of law, much less substantial, is involved, so, no interference is warranted, in the impugned judgment and decree of the Ist Appellate Court, which is hereby maintained, in the obtaining circumstances of the case. 19. No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the parties. 20. In the light of aforementioned reasons, as there is no merit, therefore, the instant regular second appeal is hereby dismissed as such. (Mehinder Singh Sullar) 9.8.2011 Judge AS Whether to be referred to reporter?Yes/No