Gurbax Singh (Died) through LRs. vs Karnail Singh

Hemant Gupta, J.—The defendant is in second appeal aggrieved against the judgment and decree passed by the Court whereby suit for possession by way of redemption of House No. 100/3 situated in Ucha Vehra Nalla Road, Patiala measuring 121 square yard, was decreed.

The Plaintiff sought such decree alleging in the plaint that he is owner of the aforesaid house and on 1.10.1982, he mortgaged the same with the defendant for a consideration of Rs. 2,000/-. An agreement in this respect was executed between the parties. On 18.7.1988, the plaintiff repaid Rs. 1,000/- out of the mortgage sum against a receipt executed and signed by the defendant and on 26.6.1990, another sum of Rs. 500/- was repaid to the defendant out of the mortgagee sum against receipt executed. Thus the plaintiff sought that the property be redeemed on payment of balance amount of Rs. 500/- as mortgage sum.

The defendant denied that the property was ever mortgaged. It was asserted that the mortgage deed was not got registered by the plaintiff. However, the defendant asserted that he is in possession of the property since June, 1956 as its owner. The defendant has been in the continuous, physical, unbroken, hostile possession of the property in question and thus, is in adverse possession of the same. It was also asserted that the plaintiff is son of the Sister of the defendant and that the defendant is an illiterate person and can just sign in broken English. It was alleged that the payment of Rs. 1,000/- on 18,7.1988 was not out of the alleged mortgage amount, but the same was a part payment of the loan of Rs. 2,000/- taken by the plaintiff. In respect of receipt dated 26.6.1990, it was alleged that the defendant signed the receipt in good faith and that the contents of the receipt were never read over to the defendant.

On the basis of pleadings of the parties, the following issues were framed:

Whether the plaintiff is entitled for possession by way of redemption of house in dispute as detailed and described in the head note of the plaint? OPP

Whether the plaintiff has no cause of action? OPD

Whether the suit is not maintainable? OPD

Whether defendant is owner in possession of the suit property by way of adverse possession? OPD

4(a) Whether the agreement dated 1.10.1982 alleged by the plaintiff, is a result of fraud and misrepresentation played by the plaintiff on the defendant as alleged in para No. 2 of the written statement? If so, its effect? OPD

Relief.

Issues Nos. 1 & 4 were taken together by the learned trial Court. On such issues, the plaintiff has produced gift deed, Exhibit P-3 and Writing Exhibit P-1, whereby the property was agreed to be mortgaged to the defendant on 1.10.1982. The agreement is sought to be proved by examining Bakshish Singh as PW-1, who deposed that the agreement, Exhibit P-1 was written in his presence. The same was read over to the parties and then the parties put their signatures thereon. After signing by the parties, he also put his signatures on the said agreement as witnesses. PW-2 Brij Lal as attesting witness also corroborated the statement of PW-1. PW-4, Hari Kishan Modgil is the Deed Writer who deposed that he has scribed the writing Exhibit P-1, whereas the plaintiff himself has appeared as PW-5 and produced the gift deed as Exhibit P-3. The receipt dated 18.7.1988 for payment of Rs. 1,000/- is produced as Exhibit PX and the receipt dated 26.6.1990 for another payment of Rs. 500/- is produced as Exhibit PY PW-6 is the Handwriting and Finger Print Expert, who produced his report as Exhibit PW-6/A to the effect that the disputed and the specimen signatures are in the hand writing of one and the same person.

On the other hand, to prove the plea of adverse possession covering Issue No. 4, the defendant has examined Surjit Singh as DW-1, Pritam Singh as DW-2, Nishan Singh as DW-4, Uttam Chand as DW-5 and Prem Singh as DW-6, whereas defendant himself appeared as DW-3. It has been found that the evidence of the defendant is discrepant in nature and defendant has miserably failed to prove his ownership over the suit property. The payment of Rs. 1500/- was found to be proved vide receipts Exhibit PX and PY and thus, qua the payment of balance amount of Rs. 500/-, the suit was decreed. The said finding has been affirmed in appeal as well.

Learned Counsel for the appellant has vehemently argued that the agreement Exhibit P-1 is the mortgage deed. Such mortgage deed is a transfer of interest in the immovable property and, therefore, could be given effect only by virtue of registered instrument. Since such document is not registered, the Courts below have gravely erred in law to hold that the defendant is mortgagee by replying upon Section 49 of the Registration Act, 1908 which stipulated that an unregistered document can be read into for collateral purpose. It is argued that the nature of the possession is not a collateral purpose for which such document can be read into evidence.

On the other hand, learned Counsel for the plaintiff-respondent has argued that the document, Exhibit P-1 is not a document whereby the property was mortgaged, but it is only an agreement of mortgage and, therefore, it does not require registration. In any case, the factum of possession under a document requiring registration is a collateral purpose for which such an unregistered document can be read into evidence. It is argued that in any case, the plaintiff can file a suit for possession on the basis of title. Once the plaintiff has proved his title and the plea of the defendant regarding adverse possession has remained unsuccessful, the plaintiff is entitled to decree for possession on the basis of the title itself without even seeking redemption of the suit land. Reliance is placed on Kolathoor Variath and Another Vs. Pairaprakottoth Cheriya Kumhahammad Haji, .

I have heard learned Counsel for the parties at some length. The argument raised by learned Counsel for the plaintiff-respondent that Exhibit P-1 is an agreement of mortgage is not tenable. It is well settled rule of construction of a document that it is not the title of the document which is relevant, but intention of the parties is to be gathered in respect of transaction by reading the entire document. If the entire document is read, it leads to irresistible conclusion that it is a document of mortgage. The possession was handed over to the appellant in terms of the document and on receipt of Rs. 2,000/-. It relates to transaction in present. Therefore, it is not an agreement of mortgage, but a document of mortgage itself. Such document of mortgage is not registered though required to be registered in the State of Punjab vide notification dated 10.6.1968 in terms of Section 58 of the Transfer of Property Act, as made applicable to the State of Punjab.

The argument that such document of unregistered mortgage deed cannot be read for collateral purpose so as to admission of entry of possession is misconceived. The collateral purpose in terms of Section 49 of the Registration Act, 1908 is a transaction which is not required to be effected by a registered instrument. In case Rai Chand Jain Vs. Miss Chandra Kanta Khosla, , the unregistered document lease deed was taken into consideration for determining the purpose for which the building was let out. In Virendra Nath thr. P.A. Holder R.R. Gupta Vs. Mohd. Jamil and Others, , even the unregistered mortgage deed was taken into consideration for ascertaining possession of the mortgage. In view of the aforesaid judgments, the unregistered mortgage deed is admissible for collateral purpose i.e. for determining the possession of the appellant i.e. as mortgagee.

It may be noticed that the defendant has taken a plea of adverse possession. The plea of adverse possession necessarily implies the admission of the title of the plaintiff. However, the appellant has not been able to prove such adverse possession. No attempt was made by the appellant to dispute the findings recorded in the present appeal as well. Thus, the finding that the plaintiff is owner of the suit land could not be disputed by any meaningful argument. Similarly, the execution of document, Exhibit P-l and the receipt for payment of Rs. 1000/- and Rs. 500/- on 18.7.1988 and 26.6.1990 respectively also stand proved nor are disputed.

Therefore, the finding recorded by the Courts below that the plaintiff is entitled to possession of the suit land on payment of balance mortgage amount of Rs. 500/- cannot be/said to be suffering from any patent illegality or irregularity which may give rise to any substantial question of law for consideration of this Court in second appeal.

Consequently, the present appeal stands dismissed.