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2016 DIGILAW 2023 (HP)

Om Prakash Chand v. Parkash Chand

2016-09-20

SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, J. This appeal has been filed by the appellant-defendant (hereinafter referred to as the 'defendant') against the judgment and decree dated 18.8.2006, passed by learned District Judge, Hamirpur, affirming the judgment and decree dated 14.12.2005, passed by learned Civil Judge (Junior Division), Court No. II, Hamirpur, H.P., whereby the suit filed by the respondent-plaintiff (hereinafter referred to as the 'plaintiff') has been decreed. 2. The brief facts of the case are that the plaintiff filed a suit for redemption. It is averred that the plaintiff is mortgagor of a shop measuring 8 feet X 18 feet as shown Mark-A in the site plan and the land to the extent of 1/9th share measuring 15-78 Sq.Mtrs. out of the land comprised in Khata No.180, Khatauni No.800, Khasra No.547, measuring 142.02 Sq.Mtrs., as per Jamabandi for the year 1997-98, situated in Up Mahal Partap Nagar, Tappa Bajuri, Tehsil and District Hamirpur, H.P. (hereinafter referred to as the 'suit premises'). It is further averred that on 27.7.1992, the plaintiff mortgaged the suit premises in favour of the defendant on receipt of Rs.5000/- as mortgage debt. It is alleged that the plaintiff was ready and willing to pay the mortgage money to defendant, but the defendant was neither ready to receive the mortgage amount nor got the mortgage redeemed and finally on 28.12.2002, the defendant refused to receive the mortgage money and to redeem the mortgaged property i.e. the suit premises. Hence, the plaintiff has filed the present suit. 3. Defendant, by way of filing written statement, resisted and contested the suit by taking preliminary objections qua maintainability, estoppel, valuation and cause of action. On merits, the defendant claimed that no relationship of mortgagor and mortgagee existed or exists between the parties to the suit, but there is relationship of landlord and tenant because the shop was let out by the plaintiff in favour of the defendant at the rental of Rs.200/- per month and a sum of Rs.5000/- was taken by the plaintiff from the defendant as refundable security/Pugri at the time of termination of the tenancy and subsequently the rent was enhanced to Rs.325/- per month. It is averred that the agreement of mortgage was got executed by the plaintiff to escape from the provisions of H.P. Urban Rent Restriction Act and prayed for dismissal of the suit. 4. It is averred that the agreement of mortgage was got executed by the plaintiff to escape from the provisions of H.P. Urban Rent Restriction Act and prayed for dismissal of the suit. 4. By way of replication, the plaintiff, while denying the allegations made in the written statement, reaffirmed the averments made in the plaint and controverted the contrary averments made in the written statement. 5. On the pleadings of the parties, the learned trial Court framed the following issues for determination:- "1. Whether the plaintiff has mortgaged the suit premises to the defendant? OPP 2. Whether the plaintiff is entitled for the redemption of the suit premises as alleged? OPP. 3. Whether the defendant is the tenant of the plaintiff as alleged? OPD. 4. Whether the suit is not maintainable? OPD. 5. Whether the plaintiff is estopped to file this suit by his own act and conduct? OPD. 6. Whether the suit is not properly valued for the purpose of court fee and jurisdiction, if so, its correct valuation ? OP Parties. 7. Whether the plaintiff has no cause of action to file this suit? OPD. 8. Relief." 6. The learned trial Court, on the basis of pleadings, settled the aforesaid issues and besides issue No.6, being not pressed, decided all the issues in favour of the plaintiff and accordingly decreed the suit of the plaintiff. An appeal preferred before the learned Appellate Court was dismissed. 7. This second appeal was admitted on the following substantial question of law: "1. Whether the Court below erred in law to treat alleged writing as a mortgage deed, is it not an inadmissible evidence for want of stamp and registration when admittedly the value of the subject matter is more than Rs.100/-." 8. Mr.Amit Singh Chandel, learned counsel representing the appellant-defendant vehemently argued that impugned judgments passed by both the Courts below are not sustainable in the eye of law as the same are not based upon the correct appreciation of evidence adduced on record by respective parties as well as proposition of law. Mr.Chandel further contended that bare perusal of the impugned judgment passed by both the Courts below itself suggests that evidence led on record by defendant was not dealt with in its right perspective by the Courts below. Rather, trial Court below failed to decide the specific issue i.e. whether the mortgage was created in favour of defendant. Mr.Chandel further contended that bare perusal of the impugned judgment passed by both the Courts below itself suggests that evidence led on record by defendant was not dealt with in its right perspective by the Courts below. Rather, trial Court below failed to decide the specific issue i.e. whether the mortgage was created in favour of defendant. Mr.Chandel further argued that both the Courts below have erred in not appreciating that mortgage deed, if any, could not be taken into consideration while acceding the claim put forth by the plaintiff especially when plaintiff was unable to prove on record that mortgage deed was registered under Indian Registration Act, 1908 by paying requisite stamp duty. Learned counsel representing the appellant also contended that Courts below have fallen in grave error while treating alleged writing as a mortgage deed, especially when value of the subject matter was more than Rs.100/- and same was not registered after affixing requisite stamp value. 9. Mr.Chandel strenuously argued that entire evidence led on record by the plaintiff itself suggests that defendant was inducted as a tenant by the plaintiff in the suit premises qua which he was in receipt of regular rent and as such both the Courts below erred in concluding that the provisions of H.P. Urban Rent Restriction Act were not applicable. Similarly, Courts below have failed to appreciate that plaintiff, solely with a view to oust the defendant, set up a plea of mortgaging of property, if any, in favour of defendant, whereas, he was unable to prove on record by leading cogent and convincing evidence that mortgage deed was ever registered in terms of Registration Act, 1908. During arguments, Mr.Chandel also invited the attention of this Court towards the evidence led on record by the defendant before trial Court to demonstrate that Courts below miserably failed to read evidence produced on record in the shape of record of Municipal Corporation, Hamirpur (for short 'M.C. Hamirpur'), wherein he was duly recorded as a tenant of the defendant qua the suit premises and as such learned Court below, while decreeing the suit of the plaintiff, has caused great injustice to the defendant. Similarly, attention of this Court was invited to Ex.PW-3/A, Rapat No.667, dated 27.11.1992, to demonstrate that undue weightage was given by the Courts below to the entry effected by the revenue authorities which suggests that oral mortgage was entered in revenue records by the Patwari that too at the back of defendant. 10. Mr.Chandel further contended that DW-2 Rajinder Singh, Clerk, M.C. Hamirpur, clearly stated that plaintiff have four tenants and appellant-defendant is one of the tenants and as such Courts below have miserably failed to appreciate that defendant could only be evicted by resorting to the provisions of H.P. Urban Rent Control Act. While concluding his arguments, Mr.Chandel forcefully contended that bare perusal of mortgage deed i.e. Ex.PW-3/A itself suggests that same is fictitious and was set up by plaintiff to defeat the provisions of H.P. Urban Rent Control Act, which were applicable in the case of defendant, who was admittedly recorded as a tenant in the M.C. record and as such judgment and decree passed by both the Courts below deserves to be quashed and set aside being totally perverse. 11. To substantiate the aforesaid submissions, he placed reliance on the judgments of Hon'ble Apex Court in Tulsi and Others v. Chandrika Prasad and Others, 2006(8) SCC 322 , State of H.P. and Others v. Shivalik Agro Poly Products and Others, (2004)8 SCC 556 and Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao and others, 1971(1) SCC 545 . 12. Mr.T.S. Chauhan, learned Counsel appearing for the respondent-plaintiff, supported the judgments passed by both the Courts below and vehemently argued that no interference, whatsoever, is warranted in the present facts and circumstances of the case, especially in view of the fact that both the Courts below have meticulously dealt with each and every aspect of the matter. He also urged that scope of interference by this Court is very limited especially when two Courts have recorded concurrent findings on the facts as well as law. In this regard, to substantiate his aforesaid plea, he placed reliance upon the judgment passed by Hon'ble Apex Court in Laxmidevamma and Others v. Ranganath and Others, (2015)4 SCC 264 . 13. I have heard learned counsel for the parties and have gone through the record of the case. 14. In this regard, to substantiate his aforesaid plea, he placed reliance upon the judgment passed by Hon'ble Apex Court in Laxmidevamma and Others v. Ranganath and Others, (2015)4 SCC 264 . 13. I have heard learned counsel for the parties and have gone through the record of the case. 14. Undisputed facts, as emerged from the record, are that the plaintiff, who was owner of the suit premises as depicted in site plan Ex.PW-2/A, filed a suit for redemption against the appellant-defendant stating therein that he mortgaged the shop as depicted in site plan Ex.PW-2/A and land to the extent of 1/9th share measuring 15-78 square meters as described above. He further contended that defendant is mortgagee of the suit premises, which was mortgaged with him on 27.7.1992 and a sum of Rs.5000/- was secured debt. Plaintiff claimed that he was ready and willing to pay the mortgage money to defendant, but the defendant was neither ready to receive the mortgage amount nor got the mortgage redeemed in spite of several requests made by him and as such he filed suit for redemption. 15. Defendant by way of written statement claimed that suit premises was never mortgaged, rather the same was let out to defendant by plaintiff at the rate of Rs.200/- per month, which was subsequently enhanced to Rs.325/- per month and agreement, if any, of mortgage was executed by the plaintiff to escape from the provisions of H.P. Urban Rent Restriction Act. Defendant also denied that a sum of Rs.5000/- was taken as security deposit by the plaintiff. 16. Record clearly suggests that both the Courts below have returned concurrent findings that plaintiff had mortgaged the suit premises to the defendant for a sum of Rs.5000/- in the year 1992 and as such suit of the plaintiff was decreed by holding him entitled for redemption of shop, description whereof has been given herein above, on the payment of Rs.5000/- to defendant. Learned trial Court also directed the defendant to vacate the suit premises and handover the possession of the same to the plaintiff. 17. Learned trial Court also directed the defendant to vacate the suit premises and handover the possession of the same to the plaintiff. 17. During the proceedings of the case, this Court had an occasion to peruse the entire evidence led on record by respective parties, wherein admittedly plaintiff was able to prove on record that he had mortgaged the suit premises to the defendant for a sum of Rs.5000/- which he now proposed to redeem by paying him an amount of Rs.5000/-. Hence, this Court sees no reason to interfere with the concurrent findings of fact as returned by the Courts below especially when it stands duly proved on record that both the Courts below have dealt with each and every aspect of the matter meticulously. 18. This Court with a view to answer the substantial question, as referred above, critically analysed the evidence led on record by the respective parties. Defendant in his cross-examination specifically admitted the claim of the plaintiff that mortgage deed was prepared, which was duly signed by him. Careful perusal of the cross-examination of DW-1 leaves no doubt in the mind of this Court that suit premises were mortgaged by the plaintiff in favour of the defendant and in this regard mortgage deed was prepared, which was duly signed by defendant. Interestingly, defendant himself admitted in his cross-examination that he was informed by Patwari with regard to mortgage of the suit property with him. Defendant has also admitted that he had signed the papers when the payment was made by him. He also admitted that no rent deed was prepared and he was unable to produce any receipt of rent. In view of his candid and categorical admission made in cross-examination, this Court probably need not to answer the substantial question of law because once defendant admits that mortgage deed was prepared and he had signed the same, substantial question has no relevance as far as decision qua controversy involved in the present case is concerned. Defendant, in his grounds of appeal as well as submissions having been made at the time of hearing, made an attempt to demonstrate that mortgage deed Ex. PW-3/A could not be termed as mortgage deed because same was not registered and no proper stamp duty was paid, when admittedly value of subject matter was more than Rs.100/-. Defendant, in his grounds of appeal as well as submissions having been made at the time of hearing, made an attempt to demonstrate that mortgage deed Ex. PW-3/A could not be termed as mortgage deed because same was not registered and no proper stamp duty was paid, when admittedly value of subject matter was more than Rs.100/-. This Court also perused Ex.PW-3/A i.e. mortgage deed, placed on record by the plaintiff to demonstrate that suit premises were mortgaged by him in favour of defendant for a sum of Rs.5000/-. Perusal of Ex.PW-3/A clearly suggests that on 27.7.1992, as claimed by the plaintiff in the plaint, plaintiff had mortgaged suit premises to the defendant, which has been duly registered in Rapat Roznamcha for the year 1991-92 and duly signed by Patwari concerned. Since defendant himself admitted that PW-1 informed him with regard to mortgage deed and he had signed the same, now at this stage defendant cannot be allowed to state that no mortgage deed was ever executed and same cannot be led in evidence since same was not registered. 19. In view of candid admission having been made on behalf of defendant himself that mortgage deed was prepared and he had appended his signature, this Court sees no reason to check the genuineness and correctness of substantial question referred herein above. For the sake of arguments, if it is presumed that Courts below, while placing reliance upon mortgage deed, fell in error ignoring the aspect that mortgage deed was not registered and properly valued, especially when the subject matter was for more than Rs.100/-, in that eventuality also claim of defendant bounds to fail in view of his own admission wherein he admitted that mortgage deed was executed and he had appended his signatures on the same. His further admission that Patwari had disclosed him regarding mortgage of the suit premises left no scope for this Court to interfere with the concurrent findings returned by the Courts below, wherein Courts below rightly concluded that in view of specific admission having been made on behalf of defendant witness, suit of the plaintiff deserves to be upheld. 20. His further admission that Patwari had disclosed him regarding mortgage of the suit premises left no scope for this Court to interfere with the concurrent findings returned by the Courts below, wherein Courts below rightly concluded that in view of specific admission having been made on behalf of defendant witness, suit of the plaintiff deserves to be upheld. 20. At this stage, it may be observed that the judgments having been relied upon by the counsel representing the appellant, as referred above, have no application because in view of candid admission having been made on behalf of the plaintiff that mortgage deed was executed, it was not necessary for the plaintiff to prove the mortgage deed in accordance with the provisions of Indian Evidence Act. This Court is of the view that in view of the candid admission made by the defendant with regard to execution of mortgage deed, non-registration of mortgage deed after affixing proper stamp duty has no effect and bearing on the present suit filed by the plaintiff. 21. This Court is fully satisfied that both the courts below have very meticulously dealt with each and every aspect of the matter and there is no scope of interference, whatsoever, in the present matter, since both the Courts below have returned concurrent findings, which otherwise appear to be based upon proper appreciation of evidence, this Court has very limited jurisdiction/scope to interfere in the matter. In this regard, it would be apt to reproduce the relevant contents of judgment rendered by Hon'ble Apex Court in Laxmidevamma's case supra, wherein the Court has held as under: "16. Based on oral and documentary evidence, both the courts below have recorded concurrent findings of fact that the plaintiffs have established their right in A schedule property. In the light of the concurrent findings of fact, no substantial questions of law arose in the High Court and there was no substantial ground for re-appreciation of evidence. While so, the High Court proceeded to observe that the first plaintiff has earmarked the A schedule property for road and that she could not have full-fledged right and on that premise proceeded to hold that declaration to the plaintiffs' right cannot be granted. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In exercise of jurisdiction under Section 100 CPC, concurrent findings of fact cannot be upset by the High Court unless the findings so recorded are shown to be perverse. In our considered view, the High Court did not keep in view that the concurrent findings recorded by the courts below, are based on oral and documentary evidence and the judgment of the High Court cannot be sustained. (p.269) 22. In the facts and circumstances discussed above, this Court is of the view that findings returned by the trial Court below, which was further upheld by the first appellate Court, do not warrant any interference of this Court as findings given on the issues framed by the trial Court below as well as specifically taken up by this Court to reach the root of the controversy appears to be based on correct appreciation of oral as well as documentary evidence. Hence, present appeal fails and is dismissed, accordingly. 23. Interim order, if any, is vacated. All the miscellaneous applications are disposed of.