RSA No. 3534 of 2009 1 In the High Court of Punjab and Haryana at Chandigarh RSA No. 3534 of 2009 Date of decision: 29.3.2011 Amarjit Singh .....Appellant Versus Davinder Singh and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.V.S.Saini, Advocate, for the appellants Mr.H.S.Thiara,Advocate for respondent No.1 Mr.Baljinder Singh,Advocate for respondent No.2 **** SABINA, J. Plaintiff had filed a suit for redemption of Shop/Property No. NF/210/2. The case of the plaintiff, in brief, was that he had mortgaged the shop in dispute with the defendants vide mortgage deed dated 14.3.2002. The shop in question was mortgaged with possession for a sum of ` 50,000/- with the defendants. Defendant No.1 was given possession of 2/3rd share of the shop, whereas, defendant No.2 was given 1/3rd share of the shop in dispute. Plaintiff now required the shop for himself and had requested the RSA No. 3534 of 2009 2 defendants to vacate the shop and accept the redemption money on 16.11.2004. Defendants, however, had refused to vacate the shop after accepting the redemption money on 17.1.2005. Hence, the suit for redemption was filed by the plaintiff. Defendant No. 1, in his written statement, admitted the execution of mortgage deed. However, it was denied that the plaintiff had approached the answering defendants for vacation of the shop. Defendant No. 2, in his written statement, averred that, in-fact, the answering defendant had paid ` 3,50,000/- to the plaintiff as mortgage amount. The possession was also given by the plaintiff to the answering defendant. The name of defendant No.1 was simply added in the mortgage deed as he was the brother-in-law of the plaintiff. The entire amount of ` 3,50,000/- had been paid by the answering defendant. Only an amount of ` 50,000/- was shown in the papers as mortgage amount. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to the relief of redemption of property No.NF/210/2 as mentioned in the head note of the plaint?OPP 2. Whether plaintiff is entitled to suit of possession of property as prayed for?OPD 3. Whether the suit is not maintainable in the present form?OPD 4.Whether the suit is stopped from filing other suit on the RSA No. 3534 of 2009 3 basis of his admission and omission?OPD-2 5.Whether the suit is undervalued?OPD-2 6.Wheher the suit is within limitation?OPP 7. Relief” The Civil Judge (Junior Division) vide judgment and decree dated 3.4.2008 decreed the suit of the plaintiff for possession by way of redemption of the suit property on deposit of the mortgage amount in the Court within a period of one month and the defendants were directed to deliver the possession of the suit property thereafter within one month. Aggrieved by the said judgment and decree, defendant No. 2 preferred an Appeal and the same was dismissed by the Additional District Judge vide judgment and decree dated 5.8.2009 with the modification that mortgage deed was executed by the plaintiff in favour of defendant No.2. The suit of the plaintiff against defendant No.2 was dismissed. Hence, the present appeal by defendant No.2. Learned counsel for the appellant has submitted that once the first appellate Court had come to the conclusion that the mortgage deed in question was a sham transaction qua defendant No.1, the entire mortgage deed was liable to be disbelieved. Learned counsel for the respondents, on the other hand, has submitted that there was no dispute qua the execution of the mortgage deed in question. The appellant had failed to establish his plea qua advancement of ` 3,50,000/- towards mortgage amount. After hearing learned counsel for the parties, I am of the opinion that the instant appeal deserves dismissal. The mortgage deed dated 14.3.2002 in question is Exhibit RSA No. 3534 of 2009 4 P1. A perusal of the same reveals that the plaintiff had mortgaged the suit property with the defendants for a sum of ` 50,000/-. Defendant No.1 was entitled to get possession of 2/3rd share of the shop in dispute,whereas, defendant No.2 was to get possession of 1/3rd share of the shop in dispute. The mortgage deed is duly signed by defendant No.2-appellant and the plaintiff. The mortgage deed, Exhibit P1, is a registered document. There is no dispute qua the execution of the mortgage deed, Exhibit P1. The appellant had taken the plea that, in fact, the mortgage amount was ` 3,50,000/- but in the mortgage deed, Exhibit P1, it had been only mentioned as ` 50,000/-. It is a common saying that men may tell lies but documents do not. Exhibit P1, mortgage deed is a registered document and, as per the same, the mortgage amount is ` 50,000/-. Defendant No.2-appellant, on the other hand, had failed to establish that, in fact, he had paid ` 3,50,000/- to the plaintiff towards mortgage amount. DW1 Satinder Pal Singh deposed that, in fact, the mortgage deed had been executed between the plaintiff and defendant No.2. ` 3,50,000/- were paid as pagri and the shop was rented out to defendant No.2 at a monthly rent of ` 500/-. The said witness, in his cross-examination, deposed that the money transaction had taken place in his presence but no writing was executed between the parties. DW2 Ashok Kumar deposed that ` 3,50,000/- were paid towards pagri and the shop was rented out to defendant No.2 at a monthly rent of ` 500/-. In his cross- examination, he deposed that no rent note was executed but the payment was made. No receipt qua payment was reduced into RSA No. 3534 of 2009 5 writing. In these circumstances, DW1 and DW2 fail to advance the case of the appellant. The appellant, in his cross-examination, deposed that no receipt was taken qua payment of ` 3,50,000/-. He had not insisted for receipt qua payment of rent with effect from 14.3.2002. He had no document to establish that he was tenant under the plaintiff. In these circumstances, the plea taken by the appellant that, in fact, he had paid ` 3,50,000/- to the plaintiff and he had been paying rent at the rate of ` 500/- per month was not established on record. Plaintiff is entitled to get back the possession of the suit property after paying the mortgage amount. The learned first appellate Court rightly came to the conclusion that the mortgage deed was, in fact, executed between plaintiff and defendant No.2. No notice was served on defendant No.1 by the plaintiff qua redemption of the suit property. Mortgage deed is also not signed by defendant No.1. No substantial question of law arises in this appeal. Dismissed. ( Sabina ) Judge March 29, 2011 arya