This is a second appeal heard orally by a Single Judge against the dismissal of a suit for permanent injunction. The appellant failed to prove the execution of the sale deed and could not establish that the property purchased was the mortgaged property. Consequently, no substantial question of law arose.
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.
RSA No.2858 of 2011 (O&M)
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.2858 of 2011 (O&M) Date of decision:15.07.2013
Brij Lal
....Appellant
Versus
Haryana Financial Corporation & another ....Respondents
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG
Present:- Mr. Deepak Sharma, Advocate for Mr. Pankaj Bali, Advocate for the appellant.
Mr. Rajesh Hooda, Advocate for respondent No.1.
RAKESH KUMAR GARG, J (ORAL)
This is plaintiff's second appeal challenging the judgment of the first Appellate Court, whereby while accepting the appeal against the judgment and decree dated 27.10.2009 of the Civil Judge (Junior Division), Karnal, suit of the plaintiff-appellant for permanent injunction has been ordered to be dismissed.
In the suit, appellant pleaded that he had purchased the house in question measuring 56.77 Sq.Yards, fully detailed in para No.4 of the plaint, vide sale deed dated 21.04.2005 (Ex.P1) and is owner in possession of the said house having property No.874/691 situated in New Char Chaman, Karnal, with a further submission that since 21.4.2005 i.e. the purchase of the house, he had been residing Kadian Savita 2013.07.20 13:40 I attest to the accuracy and integrity of this document High Court Chandigarh
RSA No.2858 of 2011 (O&M)
2
in the said house which was purchased from One Raj Rani and her two sons who had purchased the said house from Madan Lal vide registered Sale Deed dated 08.08.1995 (Ex. P2) and the said Madan Lal had purchased it from original owner Sunheri Devi vide sale deed dated 12.5.1990 (Ex. P3). Total area of the said house is 150 Sq. Yard out of which 56.77 Sq.Yards was sold in favour of said Madan Lal.
It is the further case of the appellant that respondent issued a notice to the appellant mentioning that a loan of ` 7,50,000/was taken by M/s Vishva Manav Printers, Karnal and a hypothecation deed dated 09.12.1994 was executed in their favour. Sunheri Devi stood surety for the said firm and she had mortgaged her entire house measuring 150 Sq. Yards in favour of the respondent on 13.12.1994. It is the further case of the appellant that at present there is no municipal house number but the respondent has mentioned the number of the house in question as 874/691 in auction notice.
Respondent No.1 contested the suit and filed its written statement. It took various preliminary objections regarding maintainability of the suit in the present form, want of locus-standi act and conduct of the plaintiff. It is pleaded that the house in question was mortgaged as collateral security by original owner Sunheri Devi vide registered mortgage deed dated 13.12.1994 in their favour. Since the house in question was mortgaged and stood as collateral security, the respondent was empowered to take over
RSA No.2858 of 2011 (O&M)
3
and sell the mortgaged property as per Section 29 of the State Financial Corporation Act to recover the aforesaid amount. The house in question is a single unit and which was mortgaged vide mortgage deed dated 13.12.1994 as additional security and the same cannot be further bifurcated with the alleged boundaries mentioned in the plaint.
It was further pleaded that the appellant could not derive any benefits, as he allegedly purchased the suit property, when the same had already been mortgaged as collateral security with the respondent.
The following issues were framed:-
After taking evidence and hearing both the sides, the learned Trial Court decided all the issues in favour of the plaintiff and against the respondent and decreed the suit. Aggrieved by the trial
RSA No.2858 of 2011 (O&M)
4
Court judgment and decree dated 27.10.2009, the respondentdefendant filed the appeal before the first Appellate Court which was accepted vide impugned judgment and decree dated 23.12.2010 while reversing the judgment of the trial Court. The lower Appellate Court observes as under:-
“It is the case of the plaintiffs/respondents that they purchased house no.874/691 situated in New Char Charman Karnal from Raj Rani wife of Jagan Nath and her two sons, namely, Mohan Dass and Deepak Kumar. Copy of sale deed in this regard is Ex.P1, it is dated 21.4.2005. This document speaks about delivery of symbolic possession of the property sold to the plaintiffs/respondents. This sale deed also speaks about attachment of site plan but while placing copy of sale deed Ex.P1 on the file, the plaintiffs have kept back the site plan which was attached with the sale deed recital of the sale deed. From perusal of Ex.P1, it further transpires that vide this sale deed 56.77 sq.yards area of house No.18/974 situated in new Char Chaman, Karnal was sold. Thus, this sale deed does not pertain to house No.874/691. Vendors of plaintiff purchased 56.77 sq.yards of area of house No.18/974 from Madan Lal son of Amar Nath. Copy of this sale deed dated 8.8.1995 is Ex.P2. In this sale deed, as well, the position regarding delivery of symbolic possession and attachment of site plan of the property sold is the same as was in document Ex.P1. Vide Ex.P3 Savitri Devi, original owner of property in question sold 56.77 sq.yards of the area of plot no.974/18 to Madan Lal son of Shri Amar Nath. From all these
RSA No.2858 of 2011 (O&M)
5
sale deeds it is evident that 56.77 sq. yards area of house no.18/974 with MC no.18-1173/869 was sold to the plaintiff. As such, the case of the plaintiffs that they purchased 56.77 sq.yards area of house No.874/691 is not proved on the strength of afore discussed documents. Even physical possession of the property sold is also not with the plaintiffs. Of course sale deed, copy of which is Ex.P3 is dated 12.5.1990 whereas Savitri Devi mortgaged house No.874/691.The deed of additional security is Ex.D1. Savitri Devi stood security for the loan taken by M/s Vishva Manav Printers, 516, New Char Chaman, Suvidha Wali Gali, Karnal. Defendant/ appellant had given notice to the plaintiffs to vacate illegal occupation of premises, mortgaged to the corporation in case of M/S Vishva Manav Printers on 24.4.2007, copy of this notice is Ex.P4. This notice also speaks about the property as collateral security which was mortgaged by Savitri Devi with the appellant as XVIII/874/691. So, this is the property which was mortgaged by Savitri Devi as collateral security. Even report sought by the appellant from Shri Jaswant Singh Advocate Karnal on the tile of the property in question owned and possessed by Savitri Devi is also regarding property bearing No.XVIII/874/691.This report is Ex.P6 Shri Jaswant Singh Advocate submitted the report regarding clear title of Savitri Devi regarding aforesaid property. This report is dated 29.11.1994. The sale deed on the basis of which the plaintiffs have been claiming their ownership over 56.77 sq.yards area of house No. XVIII/874/691 with MC No.18-1173/869 cannot be termed as the property
RSA No.2858 of 2011 (O&M)
6
which was mortgaged by Savitri Devi with HFC, appellant. In fact, the plaintiffs have been confusing the authorities on this point or atleast the HFC, appellant is not intentionally proceeding with the case. Of course, Savitri Devi has been shown as owner of house No. XVIII/874/691 yet no portion of this very property was sold by her to Madan Lal vide sale deed Ex.P3. Vide Ex.P3, she sold 56.77 sq.yards of land of plot no.974/18. Plot No.974/18 cannot be read as the same property of the mortgage deed i.e. XVIII/874/691. In fact, there is not even an iota of evidence on the file to prove that the property purchased by plaintiffs is from House No.XVIII/874/691 i.e. The property which was mortgaged with appellant in entirely. As such, the afore discussed documents are of no use to the plaintiffs/respondents.
Ex.D9 to Ex.D11 auction notices show that the appellant has put to auction property no.XVIII/874/691. Regarding this property there is no title in favour of the plaintiffs as per sale deed, copy of which is Ex.P1. As such in fact the plaintiffs/respondents have no case.
Learned trial Court has given the relief of permanent injunction in favour of the plaintiffs/respondents on the ground that since Smt. Savitri Devi, original owner, sold the property in question to Madan Lal predecessor in interest of plaintiffs on 12.5.1990 i.e. Prior to the mortgage of property in question by Savitri Devi in favour of the appellant, therefore, the appellant cannot auction this portion of the house in question. In fact, this finding of learned trial court is not sustainable as it does not bear out from the record. Short of
RSA No.2858 of 2011 (O&M)
7
repetition, I would like to mention that the property which was mortgaged by Smt. Savitri Devi with HFC, appellant, is not the one which was sold to plaintiffs by Raj Rani and her sons vide sale deed dated 21.4.2005, copy of which is Ex.P1. Even the plaintiffs claimed their ownership and possession of house no.874/691 whereas this house was never purchased by the plaintiffs vide sale deed Ex.P1. Different house numbers find mention in the sale deeds. The plaintiffs have tried to clear the position of different numbers in para No.5 of the plaint alleging that Madan Lal sold portion of house no.974/18 and this number continued till the sale deed in favour of plaintiffs but the defendant has mentioned the number of this house as 874/691 in auction notices in which it has been mentioned that house in question will be auctioned on 30.4.2007. In fact, pleadings lead us no where. It does not convey any meaning. This pleadings is vague. It is nowhere pleaded that the house No.XVIII/874/691 is the same house which at any point of time was bearing no.874/691 and further that it is the mortgaged property. What to goes to show that in order to avoid auction of the house, the entire game has been played. As such, the contention of learned counsel for the plaintiffs/respondents that since Smt. Savitri Devi sold portion of the house in question, therefore, the mortgage has no effect on the rights of the plaintiff; is not sustainable.”
Challenging the aforesaid judgment of the lower Appellate
Court, learned counsel for the appellant has vehemently argued that it has been proved on record that appellant is the purchaser of the
RSA No.2858 of 2011 (O&M)
8
property in question from the original owner Sunheri Devi, who had sold the property in dispute vide sale deed dated 12.5.1990(Ex.P3) whereas mortgage deed was executed by her on 13.12.1994 and therefore house in question which was sold in favour of the predecessor in interest of the appellant cannot be held to be illegal and Sunheri Devi had no right to mortgage the whole of the property after the sale deed Ex.P3. However, the argument raised before this Court is not supported by the evidence on record.
A perusal of the record would show that the appellant is claiming his rights over the suit property on the basis of the sale deed dated 21.4.2005 (Ex.P1) in his favour, but the said sale deed has never been proved by him on record in accordance with law.
It is a matter of record that appellant has placed on record the certified copy of the sale Deed dated 21.4.2005 as Ex.P1 and in spite of the objection of the respondent pertaining to the admissibility of copy of the sale deed, trial Court has erroneously found that the said document can be admitted as secondary evidence, of the original which is a public document.
Not only this, it is well settled that exhibition of a document itself will not dispense with the mode of proof of such document. Admittedly, execution of the sale deed in favour of the appellant has not been proved on record. Thus, appellant cannot claim any right on the basis of the said sale deed Ex.P1.
Apart from that a perusal of the impugned judgment would show that a finding of fact has been recorded that property
RSA No.2858 of 2011 (O&M)
9
which was mortgaged by Sunheri Devi with HFC, is not the one which was sold to the appellant by Raj Rani and her sons vide Sale Deed Dated 21.4.2005, copy of which is Ex.P1. No effort has been made by the appellant to challenge the said finding. Admittedly, no evidence has been led in this regard, despite the fact that a specific stand had been taken by the appellant with regard to description of the property and which was denied by the respondent.
In view of the aforesaid findings and the discussion, no substantial question of law as raised in the grounds of appeal, arise for consideration of this Court.
Dismissed.
(RAKESH KUMAR GARG) JUDGE
July 15, 2013 savita
3 issues framed by the court
Whether the sale deed executed in favor of the appellant is admissible and proves title when the original is not proved on record.
Whether the property purchased by the appellant is the same property mortgaged to the Haryana Financial Corporation.
Whether the first appellate court correctly reversed the trial court's decree on the basis that the documents do not prove the plaintiff's title and identity of property.
Brij Lal
Haryana Financial Corporation
Rakesh Kumar Garg
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
