Mahesh Kumar & Ors. v. Onkar Singh

CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Akshay Bhan, Advocate for the appellants. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 6.1.2010, passed by the learned Courts below, vide which the suit filed by the plaintiff / respondent for possession was decreed. The plaintiff / respondent filed a suit for possession by way of redemption of the mortgage dated 31.3.1981. The shop in dispute was originally owned by the mother of the plaintiff / respondent. The shop was mortgaged in favour of Kamal Lal, father of the defendants by way of mortgage deed dated 31.3.1981, for consideration of Rs. 2,000/- (Rupees two thousand only). The mother of the plaintiff died on 14.10.1991. As the mortgage was redeemable at will, the plaintiff / respondent filed a suit for possession by way of redemption, on payment of Rs. 2,000/- (Rupees two thousand only) and sought possession of the shop in dispute. The damages @ Rs. 4500/- (Rupees four thousand and five R.S.A. No. 1731 of 2010 -2- hundred only), was also claimed from the date of filing of suit till the delivery of possession. The suit was contested by the defendant / appellants by raising preliminary objections, that the suit was not maintainable in the present form. The plaintiff had no locus standi to file the suit. The suit was bad for non-joinder of necessary parties. It was also the case of the defendant / appellants, that Kamal Lal son of Sh. Ganeshi Lal, the original mortgagee gave the shop on rent to Beni Prashad his brother in the year 1983. Thereafter, Rajinder Kumar son of Beni Prashad inherited the tenancy rights and was said to be in possession of the shop in dispute as tenant. The case set up by the defendants was, that the suit was bad for non-joinder of necessary parties for not having joined Rajinder Kumar as party. On merits, the execution of the mortgage deed was admitted. But it was claimed, that the defendants were not the mortgagee. The mortgage amount was claimed to be Rs. 20,000/- (Rupees twenty thousand only), and not Rs. 2,000/- (Rupees two thousand only). Defendants pleaded, that they were not in possession of the shop. On the pleadings of the parties, the learned trial Court framed the following issues :- “1. Whether plaintiff is entitled to the possession by way of redemption of the suit property?OPP

2. Whether plaintiff has no locus standi to file the present suit?OPD

3. Whether suit is bade for non joinder of R.S.A. No. 1731 of 2010 -3- necessary parties?OPD

4. Relief.” The learned trial Court on appreciation of evidence, decided issue No.1 in favour of the plaintiff, and held that the plaintiff was entitled to the possession by way of redemption of the suit property. On issue No.2, it was held, that the plaintiff had the locus standi to file the suit, whereas issue No.3 was not pressed. Consequently, the suit was decreed for possession by way of redemption of mortgage, on payment of Rs. 2,000/- (Rupees two thousand only). In appeal, the findings recorded by the learned trial were affirmed. In the appeal, the main contention raised by the defendant / appellants was, that original mortgage deed was not proved, nor the mortgage was proved by examining the witnesses. It was also claimed, that no issue of tenancy was framed. The learned lower appellate Court did not accept the contentions raised by the defendant / appellants for the reason, that it was not permissible to the appellants to lead any oral evidence to contradict and vary the terms of the mortgage deed, in view of the bar contained under Section 91 of the Evidence Act. Reliance was also placed on Section 92 of the Evidence Act to reject this contention, to hold that once the terms of the agreement between the parties is reduced into writing and duly registered, the Court cannot look into the oral evidence for that purpose. The plea, that tenant was necessary party was rejected, for the reason, that he was admittedly inducted as tenant R.S.A. No. 1731 of 2010 -4- by the mortgagee, therefore was to vacate the premises on redemption of mortgage. Mr. Akshay Bhan, learned counsel appearing on behalf of the appellants contended, that this appeal raises the following substantial questions of law for consideration :-

1. Whether the learned Courts below erred in law in exhibiting the mortgage deed, though, the original was not produced?

2. Whether Rajinder Kumar, who was in possession of the shop in dispute, as tenant, was necessary party? In support of the substantial questions of law, referred to above, Mr. Akshay Bhan, learned counsel appearing on behalf of the appellants contended, that Ex. P-2 produced on record, was the photo copy, and not the original, therefore, could not be read in evidence, specially when no witnesses were examined to prove the mortgage deed, though, the mortgage amount mentioned in the mortgage deed was disputed. It was also the contention of the learned counsel for the appellants, that admittedly Rajinder Kumar was in possession of the property, therefore, was necessary party. On consideration, I find no force in the contentions raised by the learned counsel for the appellants. The contentions raised could only be accepted if there was dispute with regard to the execution of the mortgage deed. The defendant / appellants had admitted the execution of the mortgage deed dated 31.3.1981, and at the time when the mortgage deed was R.S.A. No. 1731 of 2010 exhibited, no objection was raised. -5- The learned Courts below, therefore, were right in coming to the conclusion, that the evidence of the mortgage deed, which was admitted document, could not be altered by oral evidence, in view of the bar under Sections 91 & 92 of the Evidence Act. The first substantial question of law raised, therefore, deserves to be answered against the appellants. The contention of the learned counsel for the appellants, that Rajinder Kumar was necessary party, is also misconceived, as the case set up by the defendant / appellants was, that predecessor-in-interest of Rajinder Kumar was inducted as tenant by the mortgagee. In view of the stand taken, Rajinder Kumar did not have any independent right to continue in possession, as he was to go with the mortgagee on redemption of the mortgage. The second substantial question of law, raised is also answered against the appellants. In view of the findings recorded above, there is no merit in this appeal, which is ordered to be dismissed in limine.

11.5.2010 'sp' ( VINOD K. SHARMA ) JUDGE