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2000 DIGILAW 1081 (PNJ)

Om Partap v. Chuhria Ram

2000-09-08

SWATANTER KUMAR

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JUDGMENT Swatanter Kumar, J. - Challenge in this revision is to the order dated 21st October, 1997 passed by the learned Additional District Judge, Jind, vide which, the learned Judge accepted the appeal of the appellant and set aside the order passed by the learned trial court dated 27th July, 1996. 2. Plaintiff Om Parkash and another had filed a suit on the pleadings that defendant No. 1 owns agricultural land measuring 33 kanals 2 marlas as described in the plaint. The said land was mortgaged with possession by defendant No. 1 in favour of plaintiffs and defendant No. 2 jointly. Thus, plaintiff prayed for grant of an injunction that the said defendant No. 1 be restrained from interfering in the peaceful possession of the plaintiffs or forcibly dispossessing them from the property in dispute, particularly without redeeming the mortgaged property. The suit was contested by the defendants, who stated that the mortgage deed was signed only by defendant No. 2 and the suit was collusively filed by plaintiffs and defendant No. 2. The mortgage deed was allegedly executed by defendant No. 1 in favour of defendant No. 2 who got the name of the plaintiff entered thereupon. Defendant No. 1 had paid Rs. 20,000/- as mortgaged money to defendant No. 2. Defendant No. 2 had signed the receipt in token of receipt of the said money and made endorsement in the original mortgage deed itself and, as such, the suit was not maintainable, as possession of the suit land had already been delivered to defendant No. 1. 3. Along with the suit, the plaintiffs filed an application under Order 39 Rules 1 and 2 of the Code of Civil Procedure for grant of ad-interim injunction. This application was allowed by the learned trial court, vide order dated 27.7.1996, wherein the court restrained the defendant No. 1 from forcibly dispossessing the plaintiffs from the suit land. However, the said order, as already noticed, was set aside by the learned first appellate court. 4. The records of the learned courts below have been summoned for hearing of this revision. The original mortgage deed dated 3.6.1986 is on the record. In terms of this mortgage deed Chuhria Ram has created a mortgage in favour of Om Parkash, Om Partap both sons of Ganga Dutt son of Narayan and Barhm Dutt son of Shiv Narain jointly, in view of having taken Rs. The original mortgage deed dated 3.6.1986 is on the record. In terms of this mortgage deed Chuhria Ram has created a mortgage in favour of Om Parkash, Om Partap both sons of Ganga Dutt son of Narayan and Barhm Dutt son of Shiv Narain jointly, in view of having taken Rs. 20,000/- as loan and had given possession of the property in dispute. 5. Learned counsel for the petitioners referred the alleged endorsement/receipt on the back of the mortgage deed. This endorsement has apparently the signatures of Om Parkash and none of the other mortgagees. 6. As is apparent from the mortgage deed Chuhria Ram had created a mortgage in favour of Om Parkash, Om Partap and Brahm Dutt for a sum of Rs. 20,000/- and had given possession of the suit property. From the pleadings of the parties it is clear that there is no dispute to the execution or validity of the mortgage deed. Defendant No. 1 relies upon an endorsement made at the back of the mortgage deed where it is recorded in a dim ink that money has been received and registry has been given. This endorsement is alleged to be signed by Om Parkash not below but above the endorsement again in a different ink. It will not be appropriate for this Court to comment or record a finding in this regard at this stage of the proceedings in order to avoid prejudice to the contention of either party to the lis. There is no dispute that the alleged endorsement is neither signed by other two mortgagees nor Om Parkash is alleged to have signed the endorsement for himself and for and on behalf of other two mortgagees. It may also be noticed that the endorsement does not even state what amount has been paid and is witnessed by whom ? In these circumstances it is very difficult to hold at least at this stage of the proceedings that plaintiff has no prima-facie case. 7. From the pleadings of the parties and the documents on record it appears that the plaintiff has not been dispossessed so far from the land and hold his possession as a mortgagee. Learned first Appellate Court itself noticed that in the jamabandi for the year 1993-94 the possession of the disputed land is shown to be that of the mortgagees. From the pleadings of the parties and the documents on record it appears that the plaintiff has not been dispossessed so far from the land and hold his possession as a mortgagee. Learned first Appellate Court itself noticed that in the jamabandi for the year 1993-94 the possession of the disputed land is shown to be that of the mortgagees. This presumption could be rebutted by subsequent jamabandi and Nehri Girdawari cannot take place of the jamabandi as presumption of correctness attached to a jamabandi cannot be attached to Nehri Girdawari. It is true that Girdawari cannot be ignored but defendant No. 1 would have to show further evidence oral or documentary to rebut the presumption attached to the jamabandi which obviously can be done only during the course of trial. Suffice it to say, it is pleaded by the plaintiffs that defendant No. 2 is in collusion with defendant No. 1 and has acted adverse to the interests of the plaintiffs. Defendant No. 2 so far has not even filed written statement and has been proceeded ex parte. If further interests of the third parties are permitted to be created in the disputed land, it is bound to affect the rights and interests of the parties to the suit adversely. No prejudice is likely to be caused to defendant No. 1 if the injunction is issued against him and even assuming that he is in possession of the suit land or any part thereof. 8. For the reasons afore-stated I would accept this revision petition; set aside the order of the learned first Appellate Court and restore the order passed by the learned trial Court. Resultantly, the application for injunction filed by the plaintiff is allowed to the limited extent that the plaintiffs shall not be forcibly dispossessed from the suit land or any part thereof, which is in their possession during the pendency of the suit. Petition allowed.