R.S.A. No. 361 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 361 of 2008 Date of Decision: 21.10.2008 Durwasa Dutt and others ...Appellants. Versus Ramesh and others ...Respondents. CORAM:- HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. Adarsh Jain, Advocate for the appellants. AJAY KUMAR MITTAL, J. Having lost before the courts below, the plaintiffs have approached this Court through the instant regular second appeal against the judgment and decree dated 15.6.2007 passed by the Additional District Judge, Gurgaon affirming that of the Civil Judge (Senior Division) dated 30.9.2005 whereby the suit of the plaintiffs for declaration was dismissed. Sans unessentials, the facts of the case are that the plaintiffs were recorded as mortgagees in possession with respect to the land measuring 4 kanals 17 marlas situated within the revenue estate of village Bahin, Tehsil Hathin, District Faridabad, fully detailed in para 1 of the plaint, as per jamabandi for the year 1996-97. Defendants No.2 to 9 were recorded as first mortgagees, defendants No.10 to 17 as R.S.A. No. 361 of 2008 -2- second mortgagees whereas the plaintiffs were recorded as third mortgagees. It was pleaded that defendants No.2 to 9 or their predecessors-in-interest sold away their mortgagee rights in favour of defendants No.10 to 17 who further sold away the same in favour of the plaintiffs vide registered sale deeds dated 18.7.1989 and 27.7.1989. The mortgage amount advanced by them (defendants No.2 to 9 and 10 to 17) was repaid and the mortgage in their favour was deemed to have been redeemed. It was further pleaded that the plaintiffs were mortgagees in possession of the suit land as against the successors-in- interest of the rightful mortgagors and that the land in dispute was mortgaged about 100 years back. It was also pleaded that as the suit land was not got redeemed by defendant No.1 or his predecessors-in- interest, therefore, by lapse of time prescribed for redemption of mortgage, the plaintiffs had become owners in possession of the suit land by prescription. The plaintiffs requested the defendants to admit their claim but they refused to do so and that gave rising to the filing the suit for declaration to the effect that the plaintiffs had become owners of the suit land by lapse of time prescribed for redemption of the mortgage. Defendants No.1 to 9 were proceeded against exparte. Defendants No.10 to 17 resisted the claim of the plaintiffs by filing a joint written statement and raising various preliminary objections therein. It was pleaded that the answering defendants were in possession of the suit land as mortgagees and their predecessors had never sold away the mortgagee rights in favour of the plaintiffs and the alleged sale deeds dated 18.7.1989 and 27.7.1989 were illegal, null and void and not binding on the rights of the answering defendants. R.S.A. No. 361 of 2008 -3- Besides, denying the other averments made in the plaint defendants No.10 to 17 also filed counter-claim pleading that the plaintiffs were neither the mortgagees in possession of the suit land nor had they acquired any right in the same. The entries showing the names of the plaintiffs as mortgagees with regard to suit land were wrong as they or their predecessors never sold away the mortgagee rights in favour of the plaintiffs. Alternatively, the said defendants prayed for a decree for redemption in their favour qua the suit land on payment of the mortgage amount etc. From the pleadings of the parties, various issues were framed. The trial court on appreciation of the evidence led by the parties held that the plaintiffs had not become owners of the suit land by lapse of time for redemption of the mortgage and that as the factum of mortgage of the suit land was disbelieved, therefore, defendants No.10 to 17 had acquired no right in the suit land. Accordingly, the trial court vide judgment and decree dated 30.9.2005 dismissed the suit of the plaintiffs as well as the counter claim filed by defendants No.10 to 17. Feeling aggrieved, the plaintiffs approached the lower appellate court which vide judgment and decree dated 15.6.2007 while affirming the findings recorded by the trial court dismissed the appeal. I have heard the learned counsel for the appellants and have perused the impugned judgments with his assistance. Learned counsel for the appellants made efforts to persuade this Court to reappreciate the evidence available on record to come to a different conclusion than that of the courts below but he failed to show any material on the basis of which it could be held that the R.S.A. No. 361 of 2008 -4- concurrent findings recorded by the courts below suffer from perversity due to misreading or misappreciation of evidence warranting interference by this court in the regular second appeal. The trial court returned a finding that no evidence had been produced on the record to show that the original owner of the suit land either intended or actually executed the alleged mortgage deed or ever handed over the possession of the suit land to the first mortgagee and thereafter to the subsequent mortgagees. Finding no illegality and invalidity in the aforesaid findings of the trial court, the lower appellate court affirmed the same in appeal. No question of law, much less a substantial question of law arises in this appeal for consideration of this Court. In view of the above, there is no merit in this appeal and the same is hereby dismissed. There shall, however, be no order as to costs. October 21, 2008 (AJAY KUMAR MITTAL) gbs JUDGE R.S.A. No. 361 of 2008 -5- C.M. Nos. 1047 & 1049-C of 2008 IN RSA No. 361 of 2008 **** Present: Mr. Adarsh Jain, Advocate for the appellants. **** C.M. No. 1047-C of 2008 This is an application under Section 151 of the Code of Civil Procedure for condonation of 18 days' delay in refiling the appeal. After hearing the learned counsel and perusing the application, the delay of 18 days in refiling the appeal is condoned. CM stands disposed of accordingly. C.M. No. 1049-C of 2008 This is an application under Order 41 Rule 27 read with Section 151 of the Code of Civil Procedure for permission to prove by way of additional evidence certified copies of jamabandies which are 100 years old and the original sale deeds, already produced on the file of the lower appellate court. It is not in dispute that the plaintiffs had filed similar application before the lower appellate court for leading additional evidence and the said application was dismissed. After hearing the learned counsel for the appellants and perusing the application, no ground to allow the application to lead additional evidence is made out. Application is dismissed accordingly. October 21, 2008 (AJAY KUMAR MITTAL) gbs JUDGE