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Delhi District Court

Sh. Bakshi Ram vs Sh. Kishan on 28 April, 2012

IN THE COURT OF AJAY GOEL, SCJ CUM RC (CENTRAL) DELHI.
RCA-72/01
In the Matter of:
Sh. Bakshi Ram
(Since deceased through LR)
Sh. R.D. Gupta,
R/o 314, Vill. Chattarpur,
Mehrauli, New Delhi.                               ......Appellants.

                                  VERSUS

   1. Sh. Kishan
      S/o Late Ram Kishan,
      R/o Village Chattarpur,
      Mehrauli, New Delhi.

   2. Sh. Har Kishan,
      S/o Late Faqir Chand,
      H. No. 401, (near Ramlilla Ground),
      Vill. Chattarpur, P.O. Mehrauli,
      New Delhi-110030.                  ......Respondents.

Date   of   Institution: 20.04.2001
Date   of   Assignment to this court: 22.01.2009
Date   of   Arguments: 27.04.2012
Date   of   Decision: 28.04.2012

JUDGMENT

1. Vide this judgment, I shall dispose off this appeal filed by appellant against the judgment and decree passed by Ld. Trial court dated RCA-72/01 Page No. 1/10 28.02.2001 whereby suit of the plaintiff was dismissed.

2. The brief facts of the case are that as alleged Sh. Bakshi Ram and his real brother Sh. Nand Ram are sons of late Sh. Kuria Mal mortgaged their shop measuring 4 ½ yards into 2 ¼ yards in favour of Sh. Faqir Chand for a sum of Rs. 500/- vide mortgage deed dated 18.12.1951. As stated Nand Ram had expired leaving behind no LR except Sh. Bakshi Ram i.e. his real brother. As stated Sh. Faqir Chand also died leaving behind his two sons i.e. defendants in the suit. It was stated that plaintiff on number of occasions approached and asked the defendants to redeem the said mortgaged property but they avoided to do so. Accordingly, suit for decree of redemption in favour of plaintiff on payment of Rs. 500/- to the defendant was filed.

3. Defendant No. 1 had contested the suit and filed his WS to the plaint filed by plaintiff wherein preliminary objections were raised stating that suit has not been signed and verified by duly authorised person and further that suit is bad for non-joinder of necessary parties. It was stated that alleged mortgage deed dated 18.5.1951 was never executed by the alleged mortgager and same does not relate to even the suit property and defendant is in possession of the own property in his own right and plaintiff has no right, title and interest in the same. Rest of the contents of plaint were denied.

4. Replication was filed by plaintiff wherein contents of plaint were reiterated and reaffirmed and those of WS were denied.

5. On the pleadings of parties the following issues were framed vide order dated 12.11.1990:-

1. Whether the plaint has been signed, verified and instituted by duly authorised person?OPP

2. Whether the suit is within time?OPP

3. Whether the suit is bad for non-joinder of necessary parties?OPD

4. Whether the plaintiff had not mortgaged the shop as alleged in the plaint? If so its effect?OPP

5. Whether the plaintiff is entitled to the possession of the suit shop? OPP

6. Relief.

6. In evidence, plaintiff examined five witnesses including himself in support of his case i.e. PW-1 Sh. Munshi Ram, PW-2 Sh. Immamuddin, PW-3 Sh. Bakshi Ram, PW-4 Sh. Bajrang Lal and PW-5 Sh. R.D. Gupta. On the other hand, defendant examined two witnesses in support of his case i.e. DW-1 Sh. Krishan and DW-2 Sh. Chander Singh.

7. The Ld. Trial court dismissed the suit of the plaintiff, hence the present appeal was filed.

8. I have gone through the records and have heard the arguments of parties. My issue-wise finding is given below:-

9. Issue No. 1. Whether the plaint has been signed, verified and instituted by duly authorised person?OPP:- Issue No. 1 was decided against the plaintiff on the ground that original has not RCA-72/01 Page No. 3/10 been produced. Defendant has also argued that even appeal could not have been filed by GPA as he had no authority to file the same. I have gone through the copy of GPA original of which has been filed in this court. Copy of the same is already available in the Ld. Trial court as Ex. PW-5/A which is a exact copy of the original now placed for perusal of the court. This document was exhibited on 23.3.93 in the statement of PW-5 as made out from file and original shows the endorsement of the court as original seen and returned. Nowhere question was put to this witness that original is not correct and mere fact that words original seen and returned is not mentioned in the order sheet does not belie the contention of the plaintiff. However still if court had any doubt as to whether document was exhibited and proved or not then instead of discarding the relief on this ground it could have called the original GPA. There is no requirement of applicability of section 64 and 65 of the Indian Evidence Act. Rather PW-3 himself has appeared in the witness box and have stated that R.D. Gupta is the attorney as he has given him the same and if it was so, there was no requirement of proving Ex. PW-5/A by plaintiff and rather it was duty of the defendant to put question to the plaintiff qua authenticity of the execution of GPA by him. No question was put to him by defendant. The argument of respondent that GPA could not have filed appeal is also belied from Ex. PW-5/A because it has been mentioned in that GPA that it was for the purpose of filing of appeal also. Thus wrong approach has RCA-72/01 Page No. 4/10 been taken by Ld. Trial court. Even otherwise because execution of GPA has been admitted by plaintiff and observation of Ld. Trial court is also against record because original of the same was seen by concerned court at the time of recording of evidence, thus finding on this issue is wrong and set aside and is reversed. This issue is decided in favour of plaintiff and against the defendant.

10.Issue No. 2. Whether the suit is within time?OPP: - Issue No 2 was decided in favour of plaintiff and against the defendant and there is no cross-objection or appeal against the that finding. Hence findings on this issue are re-affirmed.

11.Issue No. 3. Whether the suit is bad for non-joinder of necessary parties?OPD:- Under issue No. 3 the Ld. Trial court has observed that suit is bad for non-joinder of necessary parties. The Ld. Trial court was of the view that all LRs of fakir Chand the alleged mortgagor should have been made party including of four daughters and as daughters have not been impleaded as party thus suit is held to be bad for non-joinder of necessary party. The Ld. Trial court has not considered the position of law that even one of the LR of mortgagor or one of so many mortgagors can get the land redeemed and there is no need for all mortgagors to join in suit as property will be subject to free from mortgage subject to rights of the mortgagor as co-owner. Reliance has been placed upon 2008 (2) RCR (Civil) 129 Mohd. Hussain & Ors. VS Gopibai & Ors. Further counsel has relied upon "AIR 1993 Supreme Court 1587 RCA-72/01 Page No. 5/10 title Laxmishankar Harishankar Bhatt Vs Yashram Vasta"

wherein it has been held that "plaintiff-purchaser claiming to have acquired entire ownership of suit property- plea by defendant-tenant that suit is liable to be dismissed for non- joinder of co-owners- No averments, however, in written statement as to who are other co-owners and what rights they claim- suit cannot be dismissed for non-joinder on such vague plea." It has also been held in "AIR 1982 SC 121 Chhanganlal Keshavlal Mehta Vs Patel Narandas Haribhai"

that "if legal representative of co-mortgagee is not brought on record in appeal- appeal abates only in respect of that mortgagee when mortgagor is prepared to pay entire mortgage amount to surviving mortgagee." This case is rather on better footing because if mortgage can be redeemed in the absence of all mortgagee as party then one mortgagor in the absence of other mortgagor also can get the suit property redeemed by paying full amount. Thus on all counts, the finding of Ld. Trial court on this issue is hereby set aside and reversed and suit is held not bad. This issue is decided in favour of plaintiff and against the defendants.

12.Issue No. 4. Whether the plaintiff had not mortgaged the shop as alleged in the plaint? If so its effect?OPP and Issue No. 5. Whether the plaintiff is entitled to the possession of the suit shop?OPP:- Both these issues are taken up together.

These issues were decided against the plaintiff by holding that plaintiff has miserably failed to prove the mortgage as per law hence mortgage is not proved. Secondly, notice for demand of redemption was also not proved. The counsel has relied upon AIr 1977 Ker. 41 title Kunhamina Umma Vs Special Tahsilder and further reliance has been placed on AIR 1996 SC 1253 title Sh. Lakhi Baruah & Ors. Vs Sh. Padma Kanta. The plaintiff has mentioned that shop was mortgage vie mortgage deed dated 18.12.1951 and under issue No. 2, it has already been held that suit is within limitation. The documents is 30 years old and on the strength of above judgment (Supra) presumption of genuineness is sought qua these documents. In the plaint, it was mentioned that Bakshi Ram and Nand Ram had mortgaged the property in favour of Fakir Chand for the amount of Rs. 500/- vide mortgage deed dated 18.12.1951. There was simple denial by defendant in the WS and nowhere it has been pleaded as to how the defendant had come into the possession. DW-1 has stated that he is in possession of suit shop being inherited from his grand-father but no such document has been produced by DW-1/defendant showing property in the name of his grand-father. DW-2 has stated that he does not know whether Bakshi Ram had given shop to Fakir Chand on mortgage. He has also stated in his chief-examination that he was told that said shop belongs to him i.e. grand-father of defendant but how it is so, was not deposed by him. He has no knowledge about the mortgage of RCA-72/01 Page No. 7/10 the suit property thus he is not a witness of factual position. PW-4 has produced the mortgage deed Ex. PW-3/A from Sub-Registrar office. The mortgage deed is duly registered and presumption of genuineness is attached with it being registered document. It was upon the defendant to dispel the circumstances against non- execution of same. The argument of defendant that there is no clear mention of description of suit property also does not hold water because property situated on all sides are mentioned in the mortgage deed and property can be clearly demarcated. Both the parties know that dispute is qua which property. PW-1 has given description of property in his deposition which almost tellies with description mentioned in the mortgage deed. Ex. PW-3/B though does not mention the east, west, north and south position but same can be read in conjunction with mortgage deed Ex. PW-3/A as well as statement of PW-1. The description clearly fits as per averment of plaintiff and property was clearly identifiable. Thus finding of the Ld. Trial court that property has not been sufficiently described is belied from description given in mortgage deed as well as in the statement of PW-1. PW-3 was not given any suggestion by defendant regarding mortgage deed. Even it was not put to him that it does not contain signatures of Fakir Chand, grand-father of defendant No. 1 and father of defendant No. 2. PW-1 was present at the time of talks and execution of mortgage deed. The cross-examination of PW-2 on material points have not been done. The testimony of PW-2 has RCA-72/01 Page No. 8/10 remained unchallenged and unrebutted. PW-1 has stated that Ramji Lal and Mool Chand have died. Merely some minute details could not be given by witness, does not mean that mortgage was not proved because that may be due to lapse of time between actual happening and deposition. Moreover, notice Ex. PW-3/C have been placed on record which is addressed on the address of defendant and two ADs are also available on record. PW-3 has stated that notice was given to defendant through counsel and there is no question to plaintiff on this point by defendant and registered AD can be taken into consideration as original is available on record and bears postal stamp of concerned post office. Even if postal receipts have not been produced still AD clearly shows that it was posted as the AD could not have been in existence if the notice was not posted. This finding of Ld. Trial court is also not as per law and even otherwise the filing of the suit for redemption itself is a notice to mortgagee, thus mortgage is duly proved. So the property is identifiable and moreover, the intention of mortgagor to get it redeemed is also made out. Independent right, title and interest by defendant has not been proved which was to be proved by them as to how that they are occupying the suit property and from where they have driven the title. The initial onus was discharged by plaintiffs which could not be refuted by defendant, hence finding of Ld. Trial court on these issues are hereby set-aside and is reversed. The issues are decided in favour of plaintiff and against the defendant.

13.Relief:- In view of the above finding, the appeal is accepted with costs. The suit of the plaintiff stands decreed with costs. Decree of redemption in favour of plaintiff on payment of Rs. 500/- to defendant is hereby passed against the defendant giving direction to defendant to hand over the possession of mortgaged property i.e. shop to defendant within two months from today. Decree sheet be prepared. Copy of this judgment be sent to Ld. Trial court alongwith trial court record. Appeal file be consigned to record room.

Announced in the open court on                    (AJAY GOEL)
28.04.2012                                 SCJ CUM RC(Central)Delhi.




 RCA-72/01                                             Page No. 10/10