Gurcharan Dass vs Bhagat Singh and Another

Swatanter Kumar, J.—This Regular Second Appeal has come up for hearing after notice, of motion was issued by the Court vide its order dated 13.10.1997.

The appellant herein felt aggrieved from the judgment of the learned 1st Appellate Court vide which an appeal was dismissed with costs and the judgment and decree passed by the learned trail Court was affirmed. The respondents herein filed the suit for possession on the plea of redemption of the mortgage created for a sum of Rs. 1500/-. Respondent No. 1 claimed that he was owner of the shop and he had mortgaged the shop with possession vide registered mortgager-deed dated 6.12.1978 for a sum of Rs. 1500/-. No time was fixed for redemption. Defendant No. 1 in the suit had handed over possession to defendant No. 2 who is stated to be the real brother of defendant No. 1. As such, defendant No. 2 was also impleaded as defendant in the suit. The suit was contested by the present appellant on the plea that the suit itself was not maintainable and on merits, it was stated that the shop in dispute was taken on rent by one of the defendants in the year 1978, but he vacated the same and possession of the shop was handed over to the present respondents in the year 1979. It was averred that mortgage-deed was sham transaction and in fact it was tenancy between the plaintiff and the defendants. The shop was valued at Rs. 15,000/- at the relevant time and consequently mortgage of the shop for Rs. 1500/- was mere imaginative act on the part of the respondents. The other defendant in the suit had supported the case of the present appellant. Learned trial Court upon pleadings of the parties had framed the following issues :-

Whether the plaintiff is entitled to possession by way of redemption of the land in dispute? OPP

Whether the suit is not maintainable in the present form? OPD.

Whether the suit is barred by time? OPD.

Whether the shop in dispute has been taken on rent by defendant No. 2? OPD

Whether there has been litigation between the parties? so with what effect? OPD.

Relief.

The parties led their evidence and the learned trial Court upon appreciation of evidence decided the suit against the present appellant and decreed the suit in favour of the plaintiff vide judgment and decree dated 19.4.1996. The decree was assailed in appeal which was dismissed with costs vide judgment and decree dated 26.7.1997, which has been assailed in this Regular Second Appeal.

During the course of arguments in this appeal copies of relevant records were produced in Court by the learned counsel appearing for the parties.

The basic contention raised on behalf of the appellant is that the mortgage Sham transaction keeping in view the value stated in the mortgage-deed and other attendant circumstances. The result of such sham transaction was that the appellant was in possession of the shop as tenant and would not liable to be evicted by the Civil Court in a suit for possession.

As already noticed all the aforestated issues were decided by the learned courts below against the appellant and in favour of the respondents. The claim of defendant No. 1 in whose favour mortgage-deed was executed has not in his written statement pleaded that the shop was let out to him. In fact his effort is that he had redeemed the shop in question upon receiving the mortgage-money in 1979. Defendant No. 1 opted to adduce no evidence which could substantiate his plea. Further more, the said defendant did not step into the witness box. This conduct of the defendant must lead to adverse inference being drawn against him.

On the other hand the plaintiff had adduced documentary and oral evidence to substantiate his claim. Ex.P2 is the certified copy of registered mortgage-deed while Ex.P3 is the copy of the judgment in suit No. 1191 of 1991 between the parties. Ex.P3 has direct bearing on the main controversy in issue in the present suit. The appellant had filed the above suit in which the plea taken was that he was tenant in possession of the shop in question. The following issue No. 1 was framed in that suit:-

Whether the plaintiff is in possession of the suit land as tenant? OPP.

The findings on this issue were recorded by that Court vide its judgment and decree dated 5.10.1995 (Ex.P3) as under:-

"The plaintiff has not proved on record any rent receipt which he might have obtained from the defendant at the time of payment of rent. According to the plaintiff he is in possession of the shop in dispute as tenant for the last 11-12 years. It is not at all believable that during all this period of 11-12 years he did not obtain even a single receipt while making payment of rent. Even the plaintiff has not proved on record any document such as extract from the house tax assessment register in which he might have entered as tenant in the shop in dispute. Further the plaintiff has himself not appeared in the witness box.................................... So, an adverse inference is liable to be drawn against the plaintiff for not producing the account books. In the circumstances stated above I have no hesitation in holding that plaintiff has failed to prove by leading any cogent and reliable evidence that he is in possession of the shop in dispute as tenant under the defendant."

The above findings of the learned trial Court and specially keeping in view the findings recorded in Ex.P3, the learned 1st Appellate Court affirmed the findings and decree passed by the learned trial Court. Learned 1st Appellate Court specifically dealt with the argument raised on behalf of the appellant in regard to claim of tenancy and other circumstances pleaded for defeating the claim of mortgage. It held that the appellant claimed to be in possession as tenant for such a considerable period but he has not produced any document, even its own books of account to establish the plea taken. No cogent or reliable evidence has been adduced on behalf of the appellant which could give an inference that the parties either intended or even actually executed the alleged deed with intention to create tenancy. Mortgage-deed is a registered document and its execution and validity has been duly proved. In these circumstances no presumption could be drawn contrary to the contents of this document, more particularly when there is no evidence to create any doubt about genuineness and authenticity of this document (Ex.P2).

Learned counsel for the appellant relied upon the case of Radhey Sham and Ors. v. Kaushalya Devi 1984 CLJ 326 to argue that the Court must determine the real nature of the transaction to find out if it was mortgage-deed or was sham transaction. The real intention in this regard must be ascertained. In this regard he also relied upon the case of Mangala Kunhimina Umma and Others Vs. Puthiyaveettil Paru Amma and Others, . As far as the principle of law is concerned, no deliberations are required but to invoke this principle minimum and basic evidence has to be produced on record to raise that controversy. In the present case in the face of previous judgment between the parties Ex.P3 which admittedly had become final between the parties, no controversy can in any way stand. The plea of the appellant is totally unsustainable.

There are concurrent findings of facts based upon proper appreciation of evidence. The approach of the learned courts below can neither be termed as perverse nor contrary to the settled principles of law. Consequently, this appeal is dismissed at motion stage, without any order as to costs.