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2007 DIGILAW 1205 (PNJ)

Balbir Singh v. Darshan Pal Singh

2007-05-25

PERMOD KOHLI

body2007
Judgment 1. This Regular Second Appeal is directed against the judgment and decree dated 17-9-2001 passed by the Additional District Judge, Gurdaspur, allowing the appeal preferred by respondent-plaintiff against the judgment and decree dated 4-12-1995, passed by Sub Judge Ist Class, Gurdaspur. 2. Briefly stated the facts as emerge from the record are that respondent herein Anil Kumar claiming himself to be the owner of the land measuring 9K- 7M, situated at village Behrampur made an application under Section 4 of the Redemption of the Mortgages (Punjab) Act, 1913, before the Collector, claiming redemption of the property said to be mortgaged, vide mortgage deed dated 15-7-1968 in favour of Sain Dass son of Shri Sawan Mal for an amount of Rs. 3500/-. This application came to be rejected by the Collector, vide order dated 31-3-1989. 3. Aggrieved of the order of rejection of the application, respondent filed a suit for declaration seeking annulment of the order of the Collector and further prayed for possession by redemption of the suit property in the Court of Sub Judge Ist Class, Gurdaspur. 3A. The trial Court framed following three issues :- 1. Whether the suit is bad of non-joinder and misjoinder of necessary parties ? OPD 2. Whether the order of the Collector, Gurudaspur dated 31-3-1989 is illegal, as alleged in the plaint? OPP 3. Relief. 4. After the trial, the suit was dismissed vide judgment and decree of the trial Court dated 4-12-1995. The trial Court held that the plaintiff has failed to prove the mortgage deed as also the gift deed in favour of Sain Dass. The judgment and decree passed by the trial Court was made subject-matter of challenge before the Additional District Judge, Gurdaspur in Civil Appeal No. 32 of 1996. The Appellate Court vide impugned judgment dated 17-9-2001, set aside the judgment and decree of the trial Court by reversing the finding on issue No.2. The Appellate Court relying upon Jambandi Ex. P-4, which was duly proved before the trial Court, came to the conclusion that the Gift Deed has been duly proved and the same finds mentioned in the jamabandi also. The Appellate Court also came to the conclusion on the basis of the material on record that plaintiff has proved and established the existence of mortgage, which was also duly reflected in the Revenue record. The Appellate Court also came to the conclusion on the basis of the material on record that plaintiff has proved and established the existence of mortgage, which was also duly reflected in the Revenue record. The present appellant s case before this Court is that there was an early mortgage deed dated 16-6-1954 in favour of the appellant and both the Courts have not taken into consideration the said mortgage. It is, accordingly, stated that the Appellate Court has erroneously decreed the suit of redemption filed by respondent No.1. Learned counsel for the appellant has also argued that the plaintiff respondent has failed to prove the title on the basis of the Gift Deed. 5. I have heard the learned counsel for the parties. The Appellate Court has discussed the entire evidence, and on the basis of the evidence on record particularly the documentary evidence, came to the conclusion that the plaintiff has successfully proved the Gift Deed as also the mortgage deed. This finding of fact has been arrived at by the Appellate Court on the basis of the material on record. 6. Though, it is the judgment of reversal but the finding of fact of the First Appellate Court does not warrant interference unless it is shown to be perverse. The only ground urged by the appellants is that the Court has not taken into account the earlier mortgage deed which was also duly registered and same Khasra No. are involved. Be that as it may, even if the existence and validity of the first mortgage deed is said to be established, the mortgagee can only claim the mortgage money and limited charge over the property on the strength of the earlier mortgage. Redemption of mortgaged property cannot be prevented if the mortgagor has exercised the right to redeem the property in accordance with law. 7. Under the above circumstances, the finding of fact recorded by the First Appellate Court warrant no interference by this Court. Otherwise also, no substantial question of law has been pointed out, nor involved in the present case. 8. Dismissed.