In a regular second appeal regarding a mortgage recovery suit, the High Court dismissed the appeal in limine, holding that the lower courts' findings rejecting the execution of the mortgage and payment of consideration were fully justified by evidence and warranted no interference.
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RSA No.3438 of 2010(O&M)
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
RSA No.3438 of 2010(O&M) Date of Decision: September 22, 2011
Sukhpal Kaur
.....Appellant
v.
Gurjant Singh
.....Respondent
CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA
Present: Mr.Tribhuwan Singla, Advocate for the appellant .
.....
RAM CHAND GUPTA, J.(Oral)
C.M.No.10038-C of 2010
Application is allowed subject to all just exceptions.
RSA No.3438 of 2010
The present regular second appeal has been filed against judgment and decree dated 23.4.2010 passed by learned Additional District Judge, Barnala, dismissing appeal filed by appellant-plaintiff against judgment and decree dated 24.10.2009 passed by learned Civil Judge (Junior Division), Barnala, dismissing suit filed by present appellantplaintiff for recovery.
I have heard learned counsel for the appellant and have gone through the whole record carefully including both the judgments passed by learned Courts below.
Briefly stated, appellant-plaintiff filed this suit for recovery of .1,32,000/- including interest on the brief allegations that defendant executed an agreement for mortgaging his land in favour of plaintiff on 28.5.2004 and also received the entire consideration of 1,32,000/- and
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RSA No.3438 of 2010(O&M)
agreed to execute the mortgage deed on or before 30.6.2004, failing which he would pay 2,64,000/- to the plaintiff. It was also agreed that if plaintiffs would violate the terms and conditions of the agreement of mortgage, then a sum of 1,32,000/- would be forfeited.
On notice being issued, respondent-defendant denied the execution of any such mortgage deed. Rather the specific plea has been taken that no consideration was passed on and that his thumb impression was obtained forcibly in the police station while defendant-Gurjant Singh was unconscious at the instance of witness Tarlochan Bansal, who was commission agent of plaintiff. Plea has also been taken that he always used to sign in Punjabi and he never put this thumb impression on any document. Suit filed by present appellant-plaintiff was dismissed by learned trial Court. Appeal filed against the said judgment and decree was also dismissed by learned first appellate Court.
Both the Courts below on appreciation of evidence believed version given by respondent-defendant and disbelieved the version of present appellant-plaintiff that the mortgage deed was executed by respondent-defendant after receiving `1,32,000/-. In order to prove execution of agreement to mortgage deed, only one witness has been examined by appellant-plaintiff, i.e., Baghel Singh.
It has been admitted by appellant-plaintiff as well as the witness examined by her that the defendant used to sign in punjabi and that he had studied upto 10th class. It has also come on the record that a criminal case was registered against defendant and his son at the instance of present appellant-plaintiff. Both the parties are closely related and litigation was going on between them. It has been admitted by Baghel Singh that on
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RSA No.3438 of 2010(O&M)
25.5.2004, Gurjant Singh and his son were arrested by police of Police Station Tapa at the instance of appellant-plaintiff. Specific plea has been taken by respondent-defendant that his thumb impression was forcibly taken in the police station on the alleged mortgaged deed. There is no other evidence produced by appellant-plaintiff to prove payment of `1,32,000/- to respondent-defendant.
Hence, in view of these facts, it cannot be said that any illegality has been committed by learned Courts below in passing the impugned judgments and decrees. Finding recorded by learned Courts below is fully justified by the evidence on record and is supported by cogent reasons. The said finding is not shown to be perverse or illegal nor it is based on misreading or misappreciation of the evidence. Hence, the said finding does not warrant interference in this second appeal. No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed in limine.
(Ram Chand Gupta) Judge
22.9.2011 meenu
2 issues framed by the court
Whether to interfere with findings of courts below rejecting plaintiff's claim of mortgage execution and payment of consideration.
Whether recorded findings were perverse, illegal, or based on misappreciation of evidence in a second appeal.
Sukhpal Kaur
Gurjant Singh
Ram Chand Gupta
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
