RSA No.2939 of 2006(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.2939 of 2006(O&M)
Date of decision:24.9.2008
Bal Krishan ...... Appellant
versus
Varanjit Singh and another .......Respondents
CORAM: HON'BLE MR. JUSTICE RAKESH KUMAR GARG
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Present: Mr. Rajesh Punj, Advocate for the appellant.
Mr. D.S. Brar, Advocate for the respondents.
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Rakesh Kumar Garg, J .
CM No.8881-C of 2008
This is an application for recalling of order dated 4.9.2008
whereby the exparte order dated 4.8.2006 for granting “stay
dispossession” was vacated. Since the main appeal is being heard on
merits, no separate order is required to be passed.
RSA No.2939 of 2006(O&M)
1. This is defendant’s second appeal challenging the judgment
and decrees of the Courts below whereby suit of the plaintiff-respondents
for possession by way of redemption of the plot in question has been
decreed.
2. The plaintiffs filed the present suit for possession by way of
redemption of the plot in question on payment of Rs.1,000/- as mortgage
money on the averments that the plot in dispute is the ownership of the
plaintiffs and the same is under mortgage with the defendant for a sum of
Rs.1,000/- by virtue of registered mortgage deed dated 2.4.1992. The
plaintiffs want to get the plot in question redeemed by making payment of
RSA No.2939 of 2006(O&M) 2
Rs.1,000/- as mortgage money. The defendant was asked to accept the
mortgage money and leave the plot in question, but, he has refused to do
so. Hence, this suit.
3. The suit has been contested by the defendant-appellant
stating that he is the tenant under the plaintiffs in the premises shown as
Green as well as Red since 1990-91 and the plaintiffs had been receiving
the rent of the premises till January 1999 but have not issued any receipt
despite demand by the defendant. Moreover, there is no concern between
alleged mortgage deed and Khasra Nos.4336 and 4337 and the portion
shown as Red in the site plan. There is no mortgage deed relating to
portion shown as Red in the site plan. The defendant does not admit the
factum or validity of alleged mortgage regarding portion shown as Red in
the site plan. The alleged Red portion in the site plan and alleged
mortgage are not matching each other and thus, the defendant has prayed
for dismissal of the suit. The defendant has alleged that there exists
relationship of landlord and tenant between the parties relating to plot
shown Green and Red and the defendant is using the same as store for
his business. Hence, on the pleadings of the parties, the trial Court
framed the following issues:
“1. Whether the plaintiff is entitled to possession by
redemption of vacant plot measuring 1 ½ marla shown in
red in the site plan? OPP
2. Whether the plot in question is under mortgage
with the defendant for a sum of Rs.1000/- by virtue of a
registered mortgage deed dated 2.2.1992? OPP
3. Whether the suit is bad for non-joining of Smt.
Sarvjeet Kaur as she is a necessary party? OPD
4. Whether this Court has got no jurisdiction to try
RSA No.2939 of 2006(O&M) 3and decide the suit? OPD
5. Whether the plaintiff has no locus standi to file the
present suit? OPD
6. Relief.”
4. Vide judgment and decree dated 1.2.2006, the trial Court
decreed the suit of the plaintiff-respondents.
5. Feeling aggrieved by the impugned judgment and decree, the
defendant-appellant filed an appeal which was dismissed by the Additional
District Judge, Moga, vide impugned judgment and decree dated
11.5.2006. The relevant portion of the judgment of the Lower Appellate
Court is reproduced hereunder:-
“The point evolved for determination in this appeal is as
to whether the plea of the appellant regarding tenancy is
tenable or not and whether the plaintiff is entitled to
possession by redemption of the mortgaged property.
The plaintiff has proved the mortgage property. The
plaintiff has proved the mortgage deed by examination
of PW2 Harbhajan Singh who tendered into evidence his
sworn affidavit Ex.PW2/A and Varanjit Singh plaintiff
himself who tendered his duly sworn affidavit Ex.PW3/A
and it is not proved that this mortgage deed has been
the result of mis-representation of fraud. The only
objection is that the site plan is not prepared according
to the mortgage deed but the factum of execution of
mortgage deed and the defendant being mortgagee
could not be rebutted by any evidence although the
defendants had proved on record judgment in a previous
RSA No.2939 of 2006(O&M) 4case titled Bal Kishan v. Varanjit Singh decided by Shri
Mohammad Gulzar in Civil suit No.30 dated 6.2.1999
decided on 12.8.2002. The perusal of the judgment
reveals that only the possession had been upheld in
favour of the defendants and it has been rightly
observed in this judgement Ex.PX that title is not to be
decided. This judgment is of no help because the
defendants are admitted to be in possession and the suit
is for possession by redemption. Since the defendants
had not been able to prove relationship of landlord and
tenant between the parties. So, their possession
becomes permissive and except the portion which has
been made subject matter of the mortgage deed, the
possession on the remaining portion of the defendants
is that of trespasser which the defendants are entitled to
recover in due course of law. Finding no scope of
interference of the verdict of seeking possession by
redemption of learned court of 1st instance, the appeal is
dismissed and it is directed that the plaintiffs are directed
to make payment of the mortgage money to the
defendants against proper receipt and if the defendants
do not accept it, to deposit in the Court and will be then
entitled to take possession of the suit property. Appeal
stands dismissed with costs.”
6. Still not satisfied, the defendant-appellant has filed the present
appeal challenging the judgment and decrees of the Courts below.
7. Mr. Rajesh Punj, learned counsel for the appellant, has
vehemently argued that the findings of the Courts below are contrary to the
RSA No.2939 of 2006(O&M) 5
evidence on record. The respondent is seeking possession of redemption
of vacant plot measuring 1 ½ marla shown Red in the site plan Annexure
P-3 but the site plan proved and produced by the respondent is contrary to
the mortgage deed. Learned counsel has further argued that from the
perusal of the mortgage deed and the site plan Annexure P-3, the
description of the property in dispute does not match and therefore, the
judgment and decrees of the Courts below are liable to be set aside. It was
further argued by the learned counsel for the appellant that the respondent
is owner of 15 marla of premises fencing with boundary wall and a main
gate of Gill Road which was rented out to the appellant in the year 1990-91
at the rate of Rs.350/- per month and later on enhanced to Rs.500/- per
month. Since the appellant was the tenant of the entire 50 marla area, the
respondent with a clever device, pressurized the appellant to execute the
mortgage deed area measuring 1 ½ marla only for a sum of Rs.1,000/- just
to put pressure on him and out of 15 marla gave, boundary in the western
side of the premises in question. However, the perusal of the plaint and
the site plan produced and proved by the respondents, shows that the
appellant is seeking possession of area 10’x 40′ measuring 1 ½ marla on
the eastern side of the premises in question which is contrary to the
boundary mentioned in the mortgage deed and as such, the possession
cannot be given to the respondents. It is the further argument of the
learned counsel for the appellant that mortgage deed which was only for a
meager amount was created as a clear device just to oust the plaintiff-
respondents and also to defeat the provisions of the East Punjab Urban
Rent Restriction Act. In order to succeed, the respondents threatened to
get vacated the entire area forcibly and illegally which compelled the
appellant to file Civil Suit No.30 of 6.2.1999 which was decreed by the trial
Court vide its judgment dated 12.8.2002 Ex. D-5/3 in which the trial Court
RSA No.2939 of 2006(O&M) 6
came to the conclusion that the appellant is in possession of the entire
area as shown in the site plan (Ex.D3) and in the alternative, it has been
argued that the entire area shown as Green and Red is in possession of
the appellant and since the respondents have failed to file the suit for
taking the possession of the entire area, they cannot get the possession of
1 ½ marla in execution of the decree which cannot be executed. Learned
counsel thus, has stated that the findings of the Courts below are liable to
be reversed in favour of the appellant. On the basis of the above
arguments, learned counsel has sought to raise the following substantial
question of law:-
“(i) Whether the boundaries mentioned in the plaint, is
not matching and different to the mortgage deed,
Annexure A-1(Ex.P-1 as annexed in the suit)?
(ii) Whether the boundaries mentioned in the site
plan, Annexure A-2 (Ex.P-3 as annexed in the suit) are
vague, imaginary and contrary to the mortgage deed
Ex.A-1 (Ex.P-1 as annexed in the suit)?
(iii) Whether non filing of replication in rebuttal to the
written statement is an admitted fact with regard to
tenancy of entire area?
(iv) Whether the admitted possession of the appellant
of the entire premises consisting of 15 marlas even
before mortgage of 1 ½ marla area leads to the
inference with regard to tenancy as pleaded?
(v) Whether the non-explanation of the respondent
with regard to the possession of the appellant on the
entire area leads to presumption of tenancy?
(vi) Whether the judgment and decree as it can be
RSA No.2939 of 2006(O&M) 7executed practically against the appellant?
(vi) Whether the oral evidence of the appellant is
sufficient to presume tenancy against the bald statement
of respondent No.1?”
8. On the other hand, Sh. D.S. Brar, learned counsel for the
respondents has supported the findings of the Courts below and has
argued that the question of law as raised by the counsel for the appellant
does not arise from the impugned judgment and decrees of the Courts
below. There was no issue before the Courts below with regard to the
identity of the property under mortgage and the alleged tenancy of the
appellant. The appellant has not claimed any other issue except the
issues framed by the trial Court. Neither any such issue regarding alleged
tenancy of the appellant was argued nor the Lower Appellate Court on
appreciation of evidence has concurred with the findings of the trial Court
and thus, no substantial question of law arises in the present appeal and
the same is liable to be dismissed.
9. I have heard learned counsel for the parties and perused the
record.
10. I find no force in the contentions raised by the learned counsel
for the appellant. The only issue between the parties was with regard to the
mortgage of redemption plot in question as shown Red in the site plan. In
order to prove the mortgage of the plot in question, the plaintiff himself
appeared in the witness box as PW3/A and stated that he had mortgaged
the suit property vide mortgage deed dated 2.4.1992 for a sum of
Rs.1,000/-. The plaintiff also examined PW2 Harbhajan Singh, who is the
attesting witness of the mortgage deed Ex.P1. On the other hand, no
witness has been produced by the appellant to rebut the evidence to prove
the execution of the mortgage deed Ex.P1. In fact, the case of the
RSA No.2939 of 2006(O&M) 8
appellant is that he is the tenant in possession of 15 marlas of the whole of
the premises which belongs to the respondents and the mortgage deed of
the plot in question was created as a clever device to avoid the application
of provisions of Rent Restriction Act. Thus, in fact the mortgage of the plot
in question has been admitted by the appellant himself. However, he has
failed to prove the defence taken by him. There is no evidence to prove
that this mortgage deed has been the result of misrepresentation or fraud.
The only objection is that the site plan has not been prepared according to
the mortgage deed. Once the mortgage in question is admitted and
tenancy of the appellant has not been proved, the argument is of no help to
the appellant. The judgment and decree dated 12.8.2002 in Civil Suit
titled as Balakrishan v. Charanjit Singh is also of no help to the appellant.
In that decree, the possession of the appellant has been upheld only and it
is specifically stated that the title is not decided. It was for the appellant to
prove the relationship of landlord and tenant between the parties but he
has miserably failed to prove this said plea.
11. Thus, I find no illegality or infirmity in the findings recorded by
the Courts below. No substantial question of law arises for determination of
this Court.
12. No merits. Dismissed.
September 24, 2008 (RAKESH KUMAR GARG)
ps JUDGE
RSA No.2939 of 2006(O&M) 9