Daya Bhan Yadav vs Agya Wanti and Others

Rameshwar Singh Malik, J.—Present appeal, at the hands of unsuccessful defendants, is directed against the concurrent findings of facts recorded by both the learned courts below, whereby the suit for possession filed by the plaintiff-respondent, was decreed. Briefly put, facts of the case as noticed by learned first appellate court in para 2 to 6 of the impugned judgment, are that plaintiff-Agya Wanti through her registered attorney-Lal Singh, filed a suit claiming decree of possession of the suit property by redemption of registered mortgage deed dated 8.4.2003 qua suit property against defendant No. 1-Daya Bhan Yadav. She pleaded that defendant No. 2 who was brother of defendant No. 1, started living with him in the suit property. Defendants raised the plea of joint tenancy in the suit property instead of their rights of mortgagee in possession in the suit property. Initially, defendants did not turn up to contest the suit and remained ex parte, despite due service. Suit of the plaintiff was decreed ex parte, vide judgment and decree dated 18.1.2011. However, later on, on the basis of application under Order 9 Rule 13 of the Civil Procedure Code ("CPC" for short), that ex parte judgment and decree dated 18.1.2011 was set aside and suit was again fixed for filing written statement on behalf of the defendants. Defendants contested the suit with the preliminary objections that they were in possession of the suit property as tenant. Therefore, the suit in the present form was not maintainable, rather it was a counter blast to the suit for permanent injunction already filed by the defendants against the plaintiff. Plaintiff did not file the suit through a competent and authorized person. In fact, previously, plaintiff had created a mortgage in favour of defendants. Later on, a tenancy was created by her in favour of defendants for monthly rent of Rs. 1000/-. The rent was payable in advance at the very beginning of each English Calendar month. They denied that they were mortgagee in possession of the suit property. They also added that both the defendants were joint tenants under the plaintiff in the suit property being tenants with Agya Wanti-landlord. The suit property was having worth of lacs, so it could not be mortgaged for a meager sum of just Rs. 5000/-. Moreover, when plaintiff threatened to interfere in their possession, they filed the suit for permanent injunction. In this way, they denied all the pleas of the plaintiff on merits, being wrong and incorrect, and dismissal of the suit was prayed for.

On completion of pleadings of the parties, learned trial court framed the following issues:--

"1. Whether the plaintiff is entitled for a decree of possession of the suit property by way of redemption of mortgage deed dated 8.4.2003? OPP

Whether there is relationship of landlord and tenant between the parties? OPD

Whether the instant suit is not filed by the plaintiff through authorised person? OPD

Relief."

With a view to substantiate their respective stands taken, both the parties led their documentary as well as oral evidence. After hearing both the parties and going through the evidence brought on record, learned trial court came to conclusion that plaintiff has duly proved her case. Accordingly, her suit was decreed vide impugned judgment and decree dated 4.9.2012. Feeling aggrieved, defendant-Daya Bhan Yadav filed first appeal, which also came to be dismissed by the learned first appellate court, vide impugned judgment and decree dated 24.3.2014. Hence this second appeal.

Learned counsel for the appellant submits that plaintiff has miserably failed to prove her case. There was hardly any evidence which might be said to be sufficient to decree the suit. He further submits that instead of executing a rent deed, plaintiff got the mortgage deed registered, which was completely misread by the learned courts below. Defendants were tenants in the suit property. They had been paying rent regularly, but the plaintiff was not issuing receipts thereof. In order to avoid applicability of the Rent Act, plaintiff adopted this clever device of getting the mortgage deed executed. He also submits that since learned courts below have completely misread and misconstrued the true facts of the case as well as evidence available on record, impugned judgments were not sustainable in law. He concluded by submitting that suit was not maintainable in the present form, because it was filed through attorney and the power of attorney was not proved on record. In support of his contentions, learned counsel for the appellant relies on a judgment of this Court in Bakshi Jaswant Singh v. Smt. Pushpawati and others,(1988-1)93 P.L.R. 478.

Having heard the learned counsel for the appellant at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the arguments advanced, this Court is of the considered opinion that in the given fact situation of the present case, no interference is called for at the hands of this Court, while exercising its appellate jurisdiction under Section 100 CPC. To say so, reasons are more than one, which are being recorded hereinafter.

During the course of trial before the learned trial court, defendants-appellant made an attempt to dispute the ownership of the plaintiff. However, it was undisputed on record that defendant-appellant took the possession of the suit property from the plaintiff. This conduct of the defendant-appellant was not only unwarranted but it was a result of dishonest intention of the defendants. It would be clearly made out that defendants wanted to grab the suit property on one pretext or the other. It is also not in dispute that appellant was party to the mortgage deed. Having accepted the terms and conditions of the mortgage deed Ex. P2, appellant was estopped from denying the same at later point of time, particularly when they never challenged the mortgage deed. Once the defendants-appellant had taken the possession of the suit property from the plaintiff, pursuant to the mortgage deed Ex. P2, plaintiff has got every right to get the suit property redeemed and to take the possession thereof. Having said that, this Court feels no hesitation to conclude the learned courts below committed no error of law, while passing the impugned judgments and the same deserve to be upheld.

So far as the issue of power of attorney executed by the plaintiff in favour of Lal Singh was concerned, that cannot be said to be an illegality or an incurable defect. Plaintiff herself appeared in the witness box as P.W. 1. She not only duly proved the mortgage deed Ex. P2, but also proved due execution of the power of attorney. She was also cross-examined by the defendants in this regard. This could not have been a ground to non suit the plaintiff and the learned trial court rightly decreed the suit, which was duly affirmed by the learned first appellate court.

The power of attorney as well as mortgage deed were registered documents. There was no contrary evidence produced by the defendants, except their oral statements, which have been rightly ignored by the learned courts below: Documentary evidence was preferred by the learned trial court as well as learned first appellate court and there was no illegality in this approach adopted by the learned courts below. In view of what has been discussed hereinabove, it can be safely concluded that impugned judgments and decrees are based on correct appreciation of the facts as well as evidence available on record.

Before arriving at a judicious conclusion, learned Additional District Judge, re-appreciated the true facts of the case as well as evidence brought on record, while recording cogent findings in para 16 to 24 of the impugned judgment. Relevant findings recorded in para 21 to 23, read as under:--

"Having heard to their rival contentions to that extent and have gone through the file. The moot point to be determined is whether the relationship of mortgagor/mortgagee ever converted into that relationship of landlord or tenant. The admitted mortgage deed Ex. P2 between the parties in lis clearly depicts that the interest on that mortgage sum of Rs. 5000/- will be considered rent of the suit property. The appellants blowing hot and cold in the same breath. In their plaint Ex. D-1, they have admitted that prior to the tenancy a mortgage was created. Further, in the round of evidence of the civil suit they have taken the plea that the said mortgage was converted into tenancy rights. There is nothing on record about the payment of rent, i.e. rent receipt etc. or rent note. So by the oral version the mortgagee rights cannot be considered as converted into tenancy rights. Meaning thereby, that undisputed and admitted mortgage deed Ex. P2 cannot be discarded with that oral pleas of tenancy rights. So, in view of that the oral evidence of D.W. 2 and D.W. 3 has no worth to consider that the said mortgage rights were converted into tenancy rights.

Further, it is surprising that the appellant/defendants attempted to prove that the suit property is not ownership of Agya Wanti rather she is not allottee of that property. That is the reason, they examined D.W. 1 Makhan Singh and official of the Cantonment Board and tendered General Land Record Ex. D1 of that property. In view of the admission of appellant/defendants that they got the possession of suit property from that Agya Wanti, they have no right to challenge about her ownership. They took the property from Agya Wanti vide mortgage deed Ex. P2 and thereafter, they are supposed to return as it is to that Agya Wanti. In view of this factual position of the suit in hand, there is no question that of principle of estoppel is not applicable against that statute, rather, the citations as relied by learned counsel for the appellant are having no support to this contention. Therefore, the plaintiff Agya Wanti is entitled to redeem that mortgage deed from the defendants and accordingly, she preferred that suit. The learned trial court has rightly decided both these issues in favour of the plaintiff and against the defendants.

Finally, regarding the relief clause the learned trial court has simply ordered that the defendant can claim the amount of Rs. 5,000/- deposited by the plaintiff and granted the relief as claimed by the plaintiff. So, that relief is hereby modified to the extent that the plaintiff Agya Wanti will deposit the mortgage sum of Rs. 5000/- in favour of Daya Bhan appellant within two months, and that Daya Bhan can withdraw that sum as his mortgage sum. On deposit of that sum by Agya Wanti, she is entitled to take the possession of the suit property."

So far as the judgment relied upon by the learned counsel for the appellant is concerned, there is no dispute about the law laid down therein but on careful perusal thereof, the same has not been found to be applicable to the facts of the present case. It is the settled principle of law that peculiar facts of each case are to be examined, considered and appreciated first, before applying any codified or judge made law thereto. Sometimes, difference of one circumstance or additional fact can make the world of difference, as held by the Hon''ble Supreme Court in Padmasundara Rao and Others Vs. State of Tamil Nadu and Others, .

During the course of hearing, learned counsel for the appellant could not point out any jurisdictional error or patent illegality apparent on the record of the case, in either of the impugned judgments. He also failed to put into service any substantive argument, so as to convince this Court to take a different view than the one taken by the both the learned courts below. Further, no question of law much less substantial question of law has been found involved in the present case, which is sine qua non for interference at the hands of this Court, in exercise of its jurisdiction under Section 100 CPC. Thus, the impugned judgments deserve to be upheld, for this reason as well.

No other argument was raised.

Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the present appeal is misconceived, bereft of merit and without any substance, thus, it must fail. No case for interference has been made out. Resultantly, the instant second appeal stands dismissed, however, with no order as to costs.