RSA No.519 of 2008 (1) In the High Court of Punjab and Haryana at Chandigarh. Date of decision: 25.02.2008. Joginder Singh ... Appellant Versus Kehar Singh ... Respondent CORAM HON'BLE MR. JUSTICE PERMOD KOHLI Present: Mr.Harkesh Manuja, Advocate, for the appellant PERMOD KOHLI, J. (Oral): This is plaintiff's Regular Second Appeal against the concurrent findings of fact recorded by the learned Court below. Briefly stated, the facts of the case are that the plaintiff- appellant herein entered into an agreement dated 09.03.2002 with the defendant-respondent for the mortgage of the suit shop measuring 10 ft. X 25 ft. (one Marla) of land comprising in Rect. No.64, Killa No.24/2 (2-3). Under the agreement,total consideration for the purpose of mortgage was fixed at Rs.30,000/- and Rs.25,000/- was paid by the appellant to the defendant and simultaneously the possession of the suit shop was handed over to the plaintiff-appellant. One of the stipulations in the mortgage deed was that if the mortgager pays the suit amount before the execution of the mortgage deed, the mortgagee will handover the possession back to the mortgagor. It is admitted case of the parties that no formal mortgage deed was ever executed and registered. The defendant offered the mortgage RSA No.519 of 2008 (2) money to the plaintiff and requested for the release of the shop. However, the plaintiff-appellant refused to handover the possession and also did not receive the mortgage money. The present suit has been filed for permanent injunction seeking an order that the defendant be restrained from interfering in the possession of the plaintiff-mortgagee. The learned trial Court vide the judgment and decree dated 30.03.2007 dismissed the suit and directed the defendant to pay the mortgage money to the plaintiff within one month. It may be relevant to mention here that during the pendency of the suit, defendant had offered to pay the mortgage money for which a cheque was also filed in the Court. The defendant had also filed a Counter claim seeking possession of the premises from the plaintiff as the mortgage deed, agreed to be executed between the parties, never came into existence. The learned Trial Court, accordingly, decreed the counter claim and direct the mortgagee to deliver the possession to the mortgagor-defendant. Aggrieved of the same, the plaintiff-appellant preferred an appeal in the Court of learned Additional District Judge, Ferozepur. The appeal of the plaintiff-appellant also stands dismissed vide impugned judgment and decree dated 08.01.2008. The learned Lower Appellate Court affirmed the findings of the judgment and decree of the learned trial Court and directed the defendant to issue afresh cheque of the mortgage money and also directed the plaintiff to handover the possession of the vacant shop to the defendant within one month on receipt of the cheque from him. The plaintiff-appellant has come up in appeal against the aforesaid judgment and decree. I have heard the learned counsel for the appellant at length. RSA No.519 of 2008 (3) The only plea raised by the plaintiff-appellant is that the defendant is not the owner of the property in dispute and, therefore, cannot seek possession from him. This is totally a dishonest plea on the part of the plaintiff-appellant. He has entered into an agreement with the defendant and obtained the possession of the shop in dispute from him on payment of Rs.25,000/-. It was agreed between the parties that if necessity arises, formal mortgage deed shall be executed. However, there was a stipulation to the effect that if the defendant pays the mortgage money before the execution and registration of the mortgage deed, the plaintiff shall be bound to handover the possession of the disputed shop back to the defendant-mortgagor. Despite the fact that the defendant offered to return the mortgage money, the plaintiff refused to handover the possession to the defendant and to the contrary filed the present suit for injunction which itself was not maintainable. The plaintiff is estopped from disputing the right of the defendant after having obtained possession from him under the agreement. There is a concurrent findings of fact recorded by the learned Courts. It is settled law that Lower Appellate Court is the final Court on facts. No substantial question of law arises in this appeal. For the reasons recorded above, I find no merit in this appeal and the same is hereby dismissed with Rs.5000/- as costs which is to be paid to the defendants within a period of two months, failing which the defendant shall be entitled to execute the costs as a decree of the Civil Court. 25.02.2008 (PERMOD KOHLI) BLS JUDGE Note: Whether to be referred to the Reporter? YES/ NO RSA No.519 of 2008 (4)