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2014 DIGILAW 397 (PNJ)

Hardeep Kaur v. Ramesh Kumar

2014-02-19

PARAMJEET SINGH

body2014
JUDGMENT Mr. Paramjeet Singh, J.: - This regular second appeal is directed against the judgment and decree dated 23.03.2011 passed by learned Additional Civil Judge (Senior Division), Guhla, whereby the suit for recovery filed by the respondent/plaintiff has been decreed as well as against the judgment and decree dated 21.08.2013 passed by learned Additional District Judge, Kaithal, whereby the appeal filed by the appellants/defendants against the judgment and decree passed by the Court of first instance, has also been dismissed. 2. For convenience sake, reference to parties is being made as per their status in the civil suit. 3. The detailed facts of the case are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, the facts relevant for disposal of this second appeal are to the effect that plaintiff filed a suit seeking decree for recovery of Rs.1,35,000/- along with pendente lite and future interest at the rate of 18% per annum from 16.06.2007 till its realization on the ground that the defendants are owners of land mentioned in para No.1 of the plaint and they had mortgaged the said land with possession of specific numbers of land comprised in rect. No.78 killa No.1 to 3, rect. No.79 killa No.4, 5 along with all rights for a sum of Rs.1,35,000/- in favour of the plaintiff vide duly executed and attested mortgage deed No.926/1 dated 27.06.1995. The Defendants received the said amount in cash from the plaintiff. It was settled that the defendants/mortgagor can get the land redeemed after making payment of total mortgage amount. However, they failed to pay the amount of mortgage money and dispossessed the plaintiff forcibly after harvesting the wheat crop of 2007 and breached the terms of mortgage deed. The defendants despite repeated requests did not return the possession of the mortgaged land nor paid the mortgage money. Hence the suit. 4. Upon notice, defendants appeared and filed written statement taking preliminary objections regarding maintainability, locus standi, jurisdiction and concealment of facts. It was submitted that the defendants used to sell their crops through the firm of plaintiff and the mortgage deed No.926/1 dated 27.06.1995 was written and executed as security so that the defendants sell their crops through the commission agency of the plaintiff. It was submitted that the defendants used to sell their crops through the firm of plaintiff and the mortgage deed No.926/1 dated 27.06.1995 was written and executed as security so that the defendants sell their crops through the commission agency of the plaintiff. After closing the accounts with the plaintiff firm, defendants had changed the commission agency at Samana Mandi 8-9 years back under the name and style of M/s Guru Arjan Dev Trading Company. The plaintiff had grudge against the defendants as they changed their commission agency from Cheeka to Samana. The plaintiff used the mortgage deed which was left with him as security and committed fraud with the defendants. On merits it was denied that the defendants had mortgaged their land as detailed in para No.1 of the plaint with possession with specific number as alleged. It was also denied that rate of interest was fixed equal to the produce of mortgaged land. The possession of the suit land was never delivered to the plaintiff rather it was with the defendants. Rest of the averments made in the plaint were denied and controverted. 5. Court of first instance, on perusal of pleadings of the parties, framed following issues: - “1. Whether the plaintiff is entitled to recovery of Rs.1,35,000/- along with interest as prayed for? OPP 2. Whether the Court has the jurisdiction to try and entertain the present suit? OPP 3. Whether the suit of the plaintiff is not maintainable in the present form? 4. Relief.” 6. Parties led their respective evidence. The Court of first instance, after appreciating evidence on record decreed the suit of the plaintiff. Against the judgment and decree of the Court of first instance, appeal preferred by the appellants has been dismissed and the judgment and decree of the Court of first instance has been affirmed by the lower appellate Court. Hence, this regular second appeal. 7. I have heard learned counsel for the appellant and perused the record. 8. Learned counsel for the appellant referred to substantial questions of law framed in para No.13 of the grounds of appeal, which read as under: - “1. Whether the findings of the Courts below are based on surmises and conjectures and suffer from perversity, being contrary to evidence on record and settled principles of law? 2. 8. Learned counsel for the appellant referred to substantial questions of law framed in para No.13 of the grounds of appeal, which read as under: - “1. Whether the findings of the Courts below are based on surmises and conjectures and suffer from perversity, being contrary to evidence on record and settled principles of law? 2. Whether the plaintiff/respondent is entitled for a decree of specific performance on the basis of mortgage deed when his possession over the mortgaged land has not been proved? 3. Whether grave and manifest injustice has been occurred to the appellants/defendants? 9. Learned counsel for the appellants vehemently contended that judgments and decrees passed by both the Courts below are against law and the evidence on record. In fact, mortgage deed No.926/1 dated 27.06.1995 was only a collateral security as the defendants used to sell crops through the plaintiff, who is a commission agent and no money was paid by the plaintiff against the mortgage. After closing the accounts with the plaintiff, defendants have changed commission agency with M/s Guru Arjan Dev Trading Company about 8-9 years back, therefore, the plaintiff had a grudge against the defendants and present suit was filed. 10. I have considered the contentions raised by learned counsel for the appellants. 11. Mortgage deed has been proved on record which was for Rs.1,35,000/-. Without paying the mortgage money, appellants have taken possession of the property. Even there is admission of DW1 Gurdeep Singh that on 27.06.1995 when the mortgage deed Ex.P1 was written his mother was with him and she had put her thumb impression on the mortgage deed. 12. Section 68(1) of the Transfer of Property Act, 1882, reads as under: - “68. Even there is admission of DW1 Gurdeep Singh that on 27.06.1995 when the mortgage deed Ex.P1 was written his mother was with him and she had put her thumb impression on the mortgage deed. 12. Section 68(1) of the Transfer of Property Act, 1882, reads as under: - “68. Right to sue for mortgage money.- (1) The mortgagee has a right to sue for the mortgage- money in the following cases and no others, namely:— (a) where the mortgagor binds himself to repay the same; (b) where, by any cause other than the wrongful act or default of the mortgagor or mortgagee, the mortgaged property is wholly or partially destroyed or the security is rendered insufficient within the meaning of section 66, and the mortgagee has given the mortgagor a reasonable opportunity of providing further security enough to render the whole security sufficient, and the mortgagor has failed to do so; (c) where the mortgagee is deprived of the whole or part of his security by or in consequence of the wrongful act or default of the mortgagor; (d) where, the mortgagee being entitled to possession of the mortgaged property, the mortgagor fails to deliver the same to him, or to secure the possession thereof to him without disturbance by the mortgagor or any person claiming under a title superior to that of the mortgagor;” 13. According to Section 68(1)(c) of the Transfer of Property Act, where the mortgagee is deprived of the whole or part of his security by or in consequence of wrongful act or default of mortgagor, mortgagee may sue for mortgage money. In the present case, possession was taken by the mortgagor in 2007, thus, right accrued to the mortgagee to sue for mortgage money. Concurrent findings have been recorded by both the Courts below that the mortgage is proved and the mortgagee has been deprived of possession, which are pure findings of fact and cannot be disturbed in regular second appeal. 14. Learned counsel for the appellants has failed to show that the findings recorded by Courts below are perverse or illegal or based on misreading, non-reading or mis-appreciation of the material evidence on record. 15. In view of above, no question of law, muchless substantial question of law, as alleged, arises in the present appeal. No other point has been urged. Dismissed in limine. ---------0.B.S.0------------ —————————