A regular second appeal was filed challenging the dismissal of a suit seeking declaration and possession based on alleged mortgage and will. The Court dismissed the appeal, holding that the lower courts correctly found that no mortgage was created and that the appeal raised no substantial question of law.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
R.S.A. No. 1045 of 2008 (O&M)
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IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH
R.S.A. No. 1045 of 2008 (O&M) Date of Decision : 20.1.2009
Parshotam
.......... Appellant
Versus
Mool Chand
...... Respondent
CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA
Present : Mr. Surender Saini, Advocate for the appellant.
VINOD K. SHARMA, J. (ORAL)
This regular second appeal is directed against the judgments and decree dated 30.5.2007 and 15.10.2007 passed by the learned Courts below vide which suit filed by the plaintiff seeking declaration and possession, has been ordered to be dismissed.
The plaintiff claimed that the house in dispute was owned by the defendant.
It was claimed that the house was mortgaged with the plaintiff vide mortgage deed dated 5.4.1991 for a sum of Rs. 15,000/- but the same was not to be redeemed for a period of three years i.e. upto 4.4.1994.
The plaintiff claimed to have filed an application under Section 8 of the Bengal Land (Redemption and Foreclosure) Regulation Act No. XVI of 1806.
R.S.A. No. 1045 of 2008 (O&M)
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On notice, the defendant did not appear, though he filed power
of attorney.
The learned District Judge, Sonepat issued direction to the defendant-respondent to deposit the mortgage amount within one year, otherwise it would be open to the plaintiff to seek ownership of the house. It was claimed that after expiry of one year of the foreclosure proceedings, plaintiff has become absolute owner of the house and, therefore, entitled to get possession. It is also the case of the plaintiff that Banarsi Das was original mortgagor of the house in dispute, who has executed a registered Will dated 24.3.1992 in favour of the plaintiff before his death. He claimed ownership on the basis of Will in addition to claim of ownership under mortgage.
On notice, the defendant-respondent appeared and filed written statement by taking number of preliminary objections. On merit, the mortgage was denied. It was further the stand of the defendant that the application moved by the plaintiff before the District Judge was based on wrong facts. The Will set up by the plaintiff-appellant was also disputed. The defendant claimed special costs for frivolous litigation by the plaintiffappellant.
On the pleadings of the parties, the learned trial Court framed the following issues :-
1. Whether the defendant has conditionally mortgaged the house in question with the plaintiff on 5.4.1991 ? OPP
2. Whether the rights of the defendant to redeem the house
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R.S.A. No. 1045 of 2008 (O&M)
in question is illegally foreclosed ? OPP
3. Whether the suit of the plaintiff is not maintainable in its present form ? OPD
4. Whether the plaintiff has no locus standi to file the present suit ? OPD
5. Whether the plaintiff has suppressed the material facts, if so, to what effect ? OPD
6. Whether the plaintiff has no cause of action to file the present suit ? OPD
7. Relief.”
On appreciation of evidence the learned Courts below decided
all the issues against the plaintiff-appellant and held that there was no mortgage deed executed in favour of the plaintiff. The suit was held to be not maintainable in its form and it was also held that the plaintiff had no locus standi to file the suit. The learned Courts held that the plaintiff did not have any cause of action to maintain the suit.
The learned counsel for the appellant contends that the findings of the learned Courts below are based on misreading of evidence as the judgment passed by the learned District Judge on suit for redemption was not challenged or denied.
On consideration of the matter, I find no force in the contention raised by the learned counsel for the appellant. The learned Courts below on appreciation of oral as well as documentary evidence brought on record, have recorded a concurrent finding of fact that no mortgage was created in favour of the plaintiff-appellant. The findings cannot be said to be perverse or not capable of being arrived at on appreciation of evidence brought on
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R.S.A. No. 1045 of 2008 (O&M)
record. The decree of learned District Judge in a suit filed under the Bengal Land (Redemption and Foreclosure) Regulation Act No. XVI of 1806, was without jurisdiction, thus, rightly ignored.
This appeal thus raises no substantial question of law for
consideration by this Court.
No merit.
Dismissed.
20.1.2009 ( VINOD K. SHARMA ) 'sp' JUDGE
'sp'
2 issues framed by the court
Whether the findings of the courts below that no mortgage was created in favour of the appellant are perverse or not capable of being arrived at on appreciation of evidence.
Whether the second appeal raises any substantial question of law for consideration.
1 provisions across 1 enactments
Parshotam
Mool Chand
Vinod K. Sharma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
