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2004 DIGILAW 93 (PNJ)

Banta Ramson v. Chuhru

2004-01-28

V.M.JAIN

body2004
Judgment V.M.Jain, J. 1. This Regular Second Appeal has been filed in this Court by the LRs of Banta Ram plaintiff against the judgment and decree dated 24.7.1979 passed by the District Judge, Roopnagar vide which the appeal filed by Bas-ant Singh alias Basant Ram, defendant had been accepted, the judgment and decree passed by the Trial Court were set aside and the suit of the plaintiff was dismissed. 2. Banta Ram plaintiff had filed a suit for possession and for recovery of Rs. 500/-as earnest money against Chuhru as defendant No. 1 and Basant Ram son of Chuhru as defendant No. 2 in respect of land measuring 4 Kanal being the eastern portion of the land measuring 10 Kanal 8 marla detailed in the plaint, alleging therein that the said land was owned and possessed by Chuhru defendant and he mortgaged the same with possession with the plaintiff for Rs. 1500/- vide mortgage deed dated 10.6.1971 and that the defendants, who are father and son had conspired to deprive the plaintiff of his mortgagee rights in the suit land and that Basant Ram defendant took forcible possession of the said land about three years back and started cultivating it on the pretext that Chuhru defendant had gifted the same to him. It was alleged by the plaintiff that the alleged gift deed was illegal and ineffective and did not confer any right of possession on the defendants unless the land was redeemed by the mortgager on payment of the mortgaged money, accordingly, the decree for possession and also for recovery of mesne profits was prayed. 3. The suit was contested by Chuhru defendant, alleging therein that he was the owner of the suit land by virtue of gift deed dated 10.6.1971 and that the plaintiff was estopped by his act and conduct from challenging the gift deed. It was alleged that actual possession of the suit land was delivered to defendant No. 2 at the instance of the plaintiff who had procured the witnesses for the execution of the said gift deed. It was alleged that the mortgage deed in question was in fact, a fictitious and forged document and was never executed by Chuhru defendant and the same was without consideration and had no existence in the eye of law. It was alleged that the mortgage deed in question was in fact, a fictitious and forged document and was never executed by Chuhru defendant and the same was without consideration and had no existence in the eye of law. It was alleged that in fact, the suit land was not subject to any mortgage and as such the question of redemption did not arise. It was further alleged that even otherwise, after executing the gift deed Chuhru defendant could not have mortgaged the suit land to the plaintiff. 4. The plaintiff filed replication. Various issues were framed. Both the sides led evidence. After hearing both sides and perusing the record, the learned Trial Court decreed the suit of the plaintiff and passed a decree for possession of 4 Kanals out of 10 Kanals of land and for recovery of Rs. 500/- as mesne profits for use and occupation of the said land in favour of the plaintiff and against the defendants. However, the appeal filed by Basant Singh alias Basant Ram defendant was accepted by the learned District Judge, the judgment and decree of the Trial Court were set aside and the suit of the plaintiff was dismissed. Aggrieved against the same, the plaintiff filed the present Regular Second Appeal in this Court. 5. At the time of arguments, no-one came present on behalf of the respondents even though actual date notices had been issued. 6. I have heard the learned counsel for the plaintiff-appellant and have gone through the record carefully. 7. The learned counsel appearing for the plaintiff-appellant submitted before me that in view of the provisions of Section 47 of the Registration Act, the execution of the mortgage deed was proved to be prior in point of time than the execution of the gift deed and as such the gift deed would be subject to the mortgagee rights of the plaintiff in the suit property and that the District Judge erred in law in dismissing the suit of the plaintiff. 8. This submission made by the learned counsel for the plaintiff-appellant, in my opinion, would be of no help to the plaintiff-appellant. 8. This submission made by the learned counsel for the plaintiff-appellant, in my opinion, would be of no help to the plaintiff-appellant. There is no quarrel with the proposition that in view of the provisions of Section 47 of the Registration Act, the document, which was executed earlier shall have precedence and in this case, it is proved on the record that earlier the mortgage deed was executed and thereafter on the same day the gift deed in question was executed. However, the learned District Judge had not non-suited the plaintiff on the ground that in view of the gift deed, the mortgage deed would have no effect. On the other hand, the learned District Judge, had found that in fact, the mortgage deed in question was without consideration, inasmuch as, the payment of mortgage money itself was a doubtful fact and that even if the execution and the registration of the mortgage deed stands proved on the record, the consideration remains a matter of conjectures and in other words, the mortgage deed in question has to be held without consideration. It was on this account that the learned District Judge had accepted the appeal of the defendant and had set aside the judgment and decree of the Trial Court and had dismissed the suit of the plaintiff. After going through the evidence led by the plaintiff, in my opinion, the learned District Judge, was perfectly justified in holding that passing of the consideration was not proved on the record and that the mortgage deed in question was merely a paper transaction. In addition to the reasons already given by the learned District Judge in coming to this conclusion, it may also be added here that in the mortgage deed, the mortgage amount has been mentioned as Rs. 2000/- out of which Rs. 600/- were shown to have been paid earlier (for purchase of stamp papers for gift deed etc.) and Rs. 1400/- were to be paid before the Sub Registrar, whereas in the plaint, it was alleged by the plaintiff himself that the mortgage was for a sum of Rs. 1500/- Nothing has come on the record to reconcile the allegations made by the plaintiff in the plaint that the mortgage was for Rs. 1500/- and the averments in the mortgage deed that the mortgage was for Rs. 2000/- out of which Rs. 600/- were paid earlier and Rs. 1500/- Nothing has come on the record to reconcile the allegations made by the plaintiff in the plaint that the mortgage was for Rs. 1500/- and the averments in the mortgage deed that the mortgage was for Rs. 2000/- out of which Rs. 600/- were paid earlier and Rs. 1400/- were to be paid before the Sub Registrar at the time f registration. The plaintiff having failed to reconcile the same, in my opinion, the learned District Judge was perfectly justified in holding that the mortgage was without consideration. 9. There is another aspect of the matter, which may also be noticed. The plaintiff filed the suit for possession of 4 Kanals of land out of 10 Kanals 8 marlas of land being the eastern portion of khasra numbers detailed in the plaint. In my opinion, which land was mortgaged and possession of which land was delivered to the plaintiff cannot be made out from the pleadings of the parties and the evidence produced. Even the mortgage deed dated 10.6.1971 is vague in this regard. Under these circumstances, the allegations of the plaintiff that he was delivered possession of 4 Kanals of land at the time of mortgage and subsequently Basant Ram defendant had taken the possession of the suit land about three years prior to the filing of the suit, in my opinion, cannot be accepted, especially when the particulars of the land, which was allegedly mortgaged with the plaintiff and the possession of which was allegedly delivered to the plaintiff are vague. On this ground as well, in my opinion, the plaintiff is not entitled to the possession or for the recovery of mesne profits. 10. In view of the above, in my opinion, there is no scope for interference by this Court in the present Regular Second Appeal. Accordingly, finding no merit in this appeal, the same is hereby dismissed.