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2006 DIGILAW 2605 (PNJ)

Zail Singh v. Harjit Singh

2006-07-07

SURYA KANT

body2006
Judgment SURYA KANT, J. 1. This Regular Second Appeal has been preferred by the defendants against whom a suit for redemption of the subject property, described in the head note of the plaint, has been decreed by both the courts. 2. As per the case of the respondent-plaintiffs, their predecessor-Hardial Singh was owner of the subject property which he mortgaged in favour of appellant No.1 vide registered mortgage deed dated 20.11.1978 for a consideration of Rs.40,000/- for a period of 15 years. The possession of the mortgaged property was also handed-over to appellant No.1. Hardial singh having died and his estate having devolved upon the respondent-plaintiffs, they filed the present suit for redemption of the mortgage. It was also averred that though appellant No.1 had no concern whatsoever with the suit land, he fraudulently got a mutation sanctioned in favour of the appellants on the plea of exchange against some of their property in Uttar pradesh, though no such exchange was ever effected. 3. Controverting the claim of the plaintiff-respondents, the appellants took up the plea that there was an oral exchange of properties between the parties which was accepted by Hardial Singh, predecessor of the respondents and subsequently a memorandum was reduced into writing on 5.8.1986, on the basis of which mutations were sanctioned. The appellants also set up the agreements to sell dated 11.3.1985, 6.2.1985 and 23.12.1985 allegedly executed by Hardial Singh in favour of appellant no.3. 4. On the basis of the pleadings of the parties, learned trial Court framed the following issues:- "1. Whether the plaintiffs are owners of the disputed land?opp 2. Whether the impugned mutations are illegal, null and void and hence not binding on the plaintiffs?opp 3. Whether the plaintiffs are entitled to the possession of the disputed land?opp 4. Whether the plaintiffs have no locus standi to file this suit?opd.5. Whether the plaintiffs are estopped by their act and conduct from filing this suit?opd 6. Whether the suit is not maintainable in the present form?opd.7. Whether the suit is bad for misjoinder and non-joinder of parties. If so to what effect?opd.8. Whether the plaintiffs are entitled to the grant of perpetual injunction as prayed for?opp (I) Whether Hardayal Singh exchanged the land with some land of the defendants in the State of U. P. As alleged in the written statement, if so, its effect?opd.8a. Whether the suit is bad for misjoinder and non-joinder of parties. If so to what effect?opd.8. Whether the plaintiffs are entitled to the grant of perpetual injunction as prayed for?opp (I) Whether Hardayal Singh exchanged the land with some land of the defendants in the State of U. P. As alleged in the written statement, if so, its effect?opd.8a. Whether the plaintiffs have the right to redeem the suit land being the legal immediate heirs of Hardayal Singh son of davinder Singh from defendant No.1 after making the payment of mortgage amount of Rs.40,000/- to the defendant no.1?opp.8a. Whether the suit is time barred?opp 9. Relief". 5. On a consideration of the oral as well as documentary evidence led by the parties, both the Courts have concurrently held that the land in question was mortgaged by the predecessor of the respondent-plaintiffs in favour of appellant No.1. There is no oral or written exchange between the parties and the respondents have a right to redeem the suit land being immediate legal heirs of Hardial Singh. Consequently, the suit was decreed. Aggrieved, the defendant-appellants have approached this court. I have heard learned counsel for the parties and have perused the record. 6. The main plank of submission on behalf of the appellants turns around the plea of their alleged exchange of properties between the parties. The only evidence led in support of the said plea was a mutation sanctioned by the revenue authorities. The first Appellate Court has categorically held and rightly so that it was imperative upon the appellants to prove that they own some property in Uttar Pradesh and the same was transferred in favour of the respondent-plaintiffs or their predecessor-in-interest along with title and possession. No such evidence was led by them. On the other hand, execution of the registered mortgage deed for a period of 15 years stands established and there can be no quarrel that on the expiry of the said period, the respondents being the successors in interest of Hardial Singh, are entitled to redeem the same on payment of the mortgaged amount of rs.40,000/-. 7. It appears that the appellants moved an application to lead additional evidence during the pendency of their appeal before the first appellate Court. 7. It appears that the appellants moved an application to lead additional evidence during the pendency of their appeal before the first appellate Court. Though notice was issued in the said application, however, the same was not apparently decided by the first Appellate Court while passing the impugned judgment and decree dated 5.6.2003. 8. In order to consider and find out as to whether the additional evidence sought to be led as some direct or indirect bearing on the merits of the case, I have perused the photo copies of the certified copy of Khasra girdawari of some land situated in the revenue estate of village Samaspur rawar in District Haridwar (Uttranchal) and as per the entries made therein, one Dayal Singh son of Mangal Singh and Sukhdev Singh son of Dayal singh own some agricultural land in the said village. There is not an iota of evidence to connect the said two persons and/or the said land with the appellants or respondents. Thus, in the absence of any evidence on record to show that the appellants had given some property to the respondents in lieu of the land in question, their plea of oral exchange has no factual basis to sustain. 9. For the reasons afore-mentioned, I am of the view that the concurrent findings of fact returned by both the Courts vide the impugned judgments warrant no interference by this Court. Accordingly, the present appeal is dismissed.