Punjab-Haryana High Court
Amrik Singh vs Swaran Singh on 29 January, 2016
RSA No.4805 of 2015 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No.4805 of 2015 (O&M)
Date of decision: 29.1.2016
Amrik Singh ......Appellant(s)
Versus
Swaran Singh ......Respondent(s)
CORAM:- HON'BLE MR.JUSTICE DARSHAN SINGH
* * *
Present: Ms. Rupinder Kaur Thind, Advocate for the appellant.
Darshan Singh, J.
1. This regular second appeal has been preferred against the judgment and decree dated 27.1.2015 passed by the learned Additional District Judge, Amritsar whereby the appeal filed by the plaintiff-appellant against the judgment and decree dated 4.12.2013 passed by the learned Civil Judge, (Junior Division), Baba Bakala, Distt. Amritsar, has been dismissed.
2. The plaintiff-appellant filed the suit for declaration to the effect that the sale deed dated 21.9.1999 executed by him in favour of defendant-respondent with respect to the land bearing 4 kanals comprised of Killa No.33/2 Min. situated at village Romana Chak, Tehsil Baba Bakala, Distt. Amritsar is null and void, ab initio as the same was without any consideration and the defendant had failed to comply with the terms and conditions laid down therein. The plaintiff- appellant has also sought the consequential relief of permanent PUSHPINDER SAINI 2016.02.02 10:24 I attest to the accuracy and integrity of this document RSA No.4805 of 2015 (O&M) 2 injunction restraining the defendant from interfering, dispossessing, mortgaging and creating any charge over the land in dispute.
3. As per the case of the plaintiff-appellant, he along with his three sons was owner in possession of the total land bearing 27 kanals 12 marlas detailed and described in the head note of the plaint. On 10.5.1994, the plaintiff mortgaged the entire land vide registered mortgage deed in favour of Jagir Singh and Wassan Singh in consideration of ` 1,74,000/- for a period of 8 years. In the meantime, on 21.9.1999, the plaintiff executed the impugned registered sale deed in favour of the defendant for a total sale consideration of ` 90,000/- out of which ` 6,000/- were paid to him for his domestic use and it was incorporated in the recitals of the sale deed that the defendant shall pay ` 84,000/- to the mortgagees, namely, Jagir Singh and Wassan Singh and will get the property in dispute redeemed on or before the date of expiry i.e. May 2002. The defendant lingered on the matter on one pretext or the other and finally, the plaintiff moved an application before the Collector, Baba Bakala in April, 2010 for redemption of whole of the land by depositing of mortgage money of ` 1,74,500/- which was allowed and possession of whole of the property was handed over to him. Since then, the plaintiff is owner in possession of whole of the property. The sale deed executed in favour of the defendant does not hold any ground and has no effect on the rights of the plaintiff. Hence, this suit.
4. The defendant-respondent contested the suit that the PUSHPINDER SAINI 2016.02.02 10:24 I attest to the accuracy and integrity of this document RSA No.4805 of 2015 (O&M) 3 plaintiff never approached the defendant for redeeming the mortgaged property, rather with mala fide intention, he himself paid the whole mortgaged amount to the mortgagees and got redeemed the mortgaged land without informing the defendant. When he came to know about the mala fide intention of the plaintiff, he moved an application before the Collector, Baba Bakala and vide order dated 19.1.2011, the plaintiff was directed to deliver the possession of the property in dispute after obtaining ` 84,000/-. In compliance of the order, he deposited ` 84,000/- in the Court of Collector and possession was delivered to him through the Court on 4.2.2011. Since then he is in possession of the property in dispute. All other averments raised in the plaint were controverted.
5. From the pleading of the parties, the following issues were framed:
1. Whether the plaintiff is entitled to the declaration, as prayed for? OPP
2. Whether plaintiff is entitled to permanent injunction as prayed for? OPP
3. Whether suit filed by plaintiff is maintainable?
OPP
4. Whether suit filed by plaintiff is within limitation? OPP
5. Whether the plaintiff has no locus standi to file the present suit? OPD
6. Whether suit is bad for non-joinder and mis-
PUSHPINDER SAINI 2016.02.02 10:24 I attest to the accuracy and integrity of this document RSA No.4805 of 2015 (O&M) 4 joinder of necessary parties? OPD
7. Whether the plaintiff has not come to the court with clean hands? OPD
8. Whether suit is not properly valued for the purpose of court fee and jurisdiction?OPD
9. Relief."
6. The learned trial Court returned the findings under issues No.1 and 2 in favour of the defendant and against the plaintiff. However, remaining issues were decided against the defendant but in view of findings on issues No.1 and 2, the suit filed by the plaintiff- appellant was dismissed vide impugned judgment and decree dated 4.12.2013.
7. Aggrieved with the aforesaid judgment and decree, the plaintiff-appellant preferred an appeal which was also dismissed by the learned Additional District Judge, Amritsar vide impugned judgment and decree dated 27.1.2015. Hence, this regular second appeal.
8. I have heard Ms. Rupinder Kaur Thind, Advocate, learned counsel for the appellant and have carefully gone through the paper book.
9. Learned counsel for the appellant contended that the sale deed dated 21.9.1999 Ex.P-3 is null and void ab initio. As per the terms and conditions of the sale deed, the defendant had agreed to pay ` 84,000/- to the mortgagees for redeeming the mortgaged property. The defendant had failed to perform his part of the contract PUSHPINDER SAINI 2016.02.02 10:24 I attest to the accuracy and integrity of this document RSA No.4805 of 2015 (O&M) 5 as per the terms and conditions settled in the sale deed Ex.P-3. So, the impugned sale deed is rendered void ab initio. She contended that in fact, the sale deed in question was without consideration as no amount was disbursed to the plaintiff-appellant. The whole contract was based on the condition of payment of ` 84,000/- by the defendant to the mortgagees for redemption of whole of the mortgaged property but he intentionally and deliberately failed to perform his part of the contract. The plaintiff had to pay the entire mortgage amount of ` 1,74,500/- to get the whole land redeemed from the mortgagees. She contended that the defendant was requested several times to get the disputed land redeemed but he did not pay any heed. Thus, she contended that the impugned sale deed dated 21.9.1999 has been rendered invalid. The plaintiff- appellant is owner in possession of the land in dispute.
10. I have duly considered the aforesaid contentions.
11. This regular second appeal has been directed against the concurrent findings of both the learned Courts below. The scope for interference with concurrent findings of fact while exercising jurisdiction under Section 100 of Code of Civil Procedure, 1908 is very limited. The High Court can only interfere where the trial Court and/or the First Appellate Court misdirected themselves in appreciating the question of law, where the material or relevant evidence is not considered which, if considered would have led to an opposite conclusion, where the findings have been arrived at by the learned Courts below by placing reliance on inadmissible evidence, PUSHPINDER SAINI 2016.02.02 10:24 I attest to the accuracy and integrity of this document RSA No.4805 of 2015 (O&M) 6 which if it was omitted, would have led to the opposite conclusion and the findings recorded by the learned Courts below are perverse.
12. In the instant case, the plaintiff-appellant has challenged the sale deed dated 21.9.1999 simply on the ground that as per the terms and conditions of the sale deed, the defendant has not got redeemed the mortaged land by paying ` 84,000/- which were left with him out of the sale price of ` 90,000/-. I do not find any substance in the plea raised by the learned counsel for the appellant that the sale deed was without any consideration. As it is the admitted case of the plaintiff-appellant that ` 6,000/- were received by him for the domestic use which were certainly the part of the sale price. The defendant-respondent was also required to pay ` 84,000/- to the mortgagees for redemption of the mortgage. The mortgage was for a period of 8 years. A total land measuring 27 kanals 12 marlas including the land in suit bearing 4 kanals was mortgaged with Jagir Singh and Wassan Singh for a consideration of ` 1,74,500/- vide mortgage deed dated 10.5.1994 for a period of 8 years. Even if the mortgage is not redeemed that will not make the sale deed dated 21.9.1999 null and void, at the most, the title of the defendant will be subject to the mortgagee rights.
13. Moreover, it is not the case that only the land bearing 4 kanals 0 marla purchased by the defendant-respondent was mortgaged rather the plaintiff had mortgaged his entire land bearing 27 kanals 12 marlas with Jagir Singh and Wassan Singh for a sum of ` 1,74,500/-. So, the defendant was not in a position to get the PUSHPINDER SAINI 2016.02.02 10:24 I attest to the accuracy and integrity of this document RSA No.4805 of 2015 (O&M) 7 whole mortgaged land redeemed by paying ` 84,000/-. The mortgage could be redeemed only on payment of ` 1,74,500/-. There is no material on record to show that the plaintiff had ever called upon the defendant to contribute the amount of ` 84,000/- for the redemption of the mortgage. It is an admitted case that even while moving application for redemption of mortgage, the plaintiff has not impleaded the defendant as a party. There is no material to show that any notice was issued by the plaintiff asking the defendant to join them in the application and to contribute his part of the mortgage money. The learned First Appellate Court has rightly observed that had the defendant been made a party to the redemption application and had he failed to pay the amount of ` 84,000/- there might by some justification for the plaintiff to say that the defendant did not perform the terms and conditions recited in the sale deed but the plaintiff has filed the application for redemption of mortgage at his own level at the back of the defendant. Thus, it cannot be stated that the defendant has violated the terms and conditions of the sale deed dated 21.9.1999 or that he had failed to perform his part of contract and consequently, the plea raised by the plaintiff-appellant that the sale deed dated 21.9.1999 is null and void ab-initio has no legal force. Therefore, I do not find any reason to differ with the concurrent findings recorded by the learned Courts below which are perfectly in consonance with the legal and factual position emerging from the material available on record. Thus, the approach of the learned Courts below does not suffer from any perversity. PUSHPINDER SAINI 2016.02.02 10:24 I attest to the accuracy and integrity of this document RSA No.4805 of 2015 (O&M) 8
14. Consequently, no question of law, much less, substantial question of law as claimed by the appellant arises in the present appeal.
15. Resultantly, the present appeal being devoid of merits is hereby dismissed in limine.
16. No order as to costs.
January 29, 2016 (DARSHAN SINGH)
ps JUDGE
PUSHPINDER SAINI
2016.02.02 10:24
I attest to the accuracy and
integrity of this document