Harbans Singh vs Harbhajan Singh

Harphul Singh Brar, J.

This is a Regular Second Appeal against the judgments dated April 27, 1988 and October 10, 1990 of the learned Subordinate Judge First Class, Fazilka and the learned Additional District Judge, Ferozepur, respectively.

Briefly stated, the facts are that plaintiffappellant Harbans Singh had filed a suit for possession against defendantrespondents Harbhajan Singh and Sunil Kumar by way of redemption of one shop having area 7''x26'' comprised in Khasra No. 2190/1790/835 min and is bounded with the boundaries as such :

East : Shop owned by the plaintiff;

West : Shop of Chiman Lal;

North : Shop owned by the plaintiff;

South : Tehsil Road.

situated at Abohar, Tehsil Fazilka for Rupees Seven Thousand vide Registered Mortgage Deed, dated July 18, 1980 which was duly executed by the parties and the plaintiff had, thus the right to redeem the said property at any time. Defendantrespondents were asked several times to accede to the request of the plaintiffappellant to redeem the property in dispute, but to no effect. Hence, the above said suit was filed.

The defendantrespondents contested the suit and inter alia alleged that there was no relationship of mortgagor and mortgagee between the parties. Rather, they had taken the shop described above on rent from the plaintiff appellant at the rate of Rupees Three Hundred per month; and the suit was liable to be dismissed on that score alone.

It was further averred by them in the written statement that the Civil Court had no jurisdiction to try the suit as the defendantrespondents were the tenants of the plaintiffappellant, Harbans Singh. It was, thus, asserted that the suit should be dismissed by the civil Court as being without jurisdiction.

In the Replication filed by the plaintiffappellant, assertions made by the defendantrespondents were denied. On the pleadings of the parties, the following Issues by the trial Court were framed :

Whether there exists a relationship of mortgager and mortgagee between the parties? OPP

If Issue No. 1 is proved, whether the plaintiff is entitled to possession of the shop in dispute by way of redemption? OPP

Whether this Court has no jurisdiction to try and decide the present suit? OPD

Whether the plaintiff is debarred from filing the present suit by his act and conduct? OPD

Relief.

The trial Court decided Issues 1 to 3 against the plaintiffappellant and Issue No. 4 against the defendantrespondents; and consequently the suit was dismissed with costs.

While deciding Issue No. 1 against the plaintiffappellant, it was held by the trial Court that the plaintiffappellant had failed to prove the execution of the Mortgage Deed as he had not examined any attesting witness of the Mortgage Deed without, however, discussing the effect of other evidence produced by the plaintiffappellant in order to prove the execution of the Mortgage Deed.

Under Issue No. 2, it was held that in view of the finding on Issue No. 1, the plaintiffappellant was not entitled to the possession by way of redemption.

Under Issue No. 3, it was held that since the plaintiffappellant had failed to prove the relationship of mortgagor and mortgagee between the parties, as such the version of the defendantrespondents that they were in possession of the shop in dispute as tenants deserved to be accepted. (However, to reach this conclusion the trial Court did not discuss or refer to any evidence with regard to the relationship of tenant and landlord between the parties). Consequently, it was held by the trial Court that the civil Court had no jurisdiction to decide the suit as the defendantrespondents were the tenants of the plaintiffappellant.

Issue No. 4 was decided against the defendantrespondents by the trial Court. Consequently, the learned Subordinate Judge dismissed the suit of the plaintiffappellant, with costs.

In appeal, the learned Additional District Judge reversed the finding of the trial Court on Issue No. 3 by holding that the defendantrespondents had not been proved to be the tenants of the plaintiffappellant and that the finding of the trial Court was held to be based on mere conjectures. As a result thereof, it was held by the lower appellate Court that the civil Court had got jurisdiction to decide the matter as the defendantrespondents were not proved to be the tenants of the plaintiffappellant. However, the lower appellate Court affirmed the findings of the trial Court on Issue No. 1 by holding that the execution of the Mortgage Deed was not proved. Resultantly, the appeal was dismissed by the lower appellate Court. The defendant respondents neither filed any appeal nor had chosen to file CrossObjections against the finding of the lower appellate Court on Issue No. 8, wherein it was held that they were not the tenants of the plaintiffappellant. This question, thus, becomes final and it is now an admitted fact that the defendantrespondents are not the tenants of the plaintiffappellant.

The learned counsel for the appellant submits that both the Courts below have erred in law and on facts in holding that the plaintiffappellant had failed to prove the execution of the Mortgage Deed between the parties. According to him, the trial Court had not gone into the evidence produced by the plaintiffappellant in order to prove the Mortgage Deed. The trial Court has held the Mortgage Deed not to be proved simply by stating that attesting witnesses of the Mortgage Deed had not been produced by the plaintiffappellant and, thus, relationship of mortgagor and mortgagee was not proved between the parties.

The learned counsel for the appellant further submits the even the lower appellate Court had misread the evidence and misconstrued the documents on the file and had not taken into consideration the evidence led by the plaintiffappellant to prove the execution of the Mortgage Deed, Exhibit P1.

It is then contended by the learned counsel for the appellant that it had wrongly been stated by the lower appellate Court that the Scribe of the Mortgage Deed, copy of which is Exhibit P1, had not been examined by the plaintiffappellant. The learned counsel submits that the execution of the Mortgage Deed has been amply proved on record by the evidence of Madan Lal, Deed Writer (PW2), Paul Singh Registration Clerk(PW1) and Harbans Singh plaintiffappellant (PW3). According to the learned counsel, it is not that the attesting witnesses were not examined simply without any reason; they had to be left as won over by the other party and the statement to that effect was made before the Court. The learned counsel further submits that the defendantrespondents had even admitted the execution of the Mortgage Deed while replying to the Notice Mark ''A'' given by the Advocate for the plaintiffappellant, to the defendantrespondents for redemption of the shop in question. Reply to the Notice is Exhibit P3 on the file.

The learned counsel for the appellant has cited Mathoo Lal v. Durga Prasad, A.I.R. 1954 S.C. 355, Union of India v. Moksh Builders and Financiers Ltd. and others, A.I.R. 1977 S.C. 409 and Jarnail Singh v. Narain Singh and others, A.I.R. 1984 Punjab and Haryana 181, to support his contentions.

On the other hand, the learned counsel for the respondents submits that no fault can be found in the concurrent finding of fact arrived at by both the Courts below regarding the proof of execution of Mortgage Deed, copy of which is Exhibit P1. According to the learned counsel for the respondents, as per section 68 of the Indian Evidence Act, it was incumbent upon the plaintiffappellant to produce the attesting witnesses of the Mortgage Deed which he had failed to do in spite of the fact that both of them were living. He submits that the plaintiffappellant had not complied with the basic requirements as required by law to prove the Mortgage Deed. He, thus, submits that the appeal is liable to be dismissed. He further submits that mere placing on record certified copy of the Mortgage Deed does not amount to proof of the original Mortgage Deed. He had cited Sadhu v. Mst. Kishni, A.I.R. 1980 Punjab and Haryana 85 and Bachittar Singh v. Rajinder Singh, 1983 P.L.J. 172 in order to substantiate his contentions.

The only question which now survives for determination in this Regular Second Appeal is, as to whether the execution of the Mortgage Deed (Exh.P1) dated July 18, 1980 has been duly proved by the plaintiffappellant, or not.

The learned trial Court had dismissed the suit on two grounds (i) that the plaintiffappellant had failed to legally prove the execution of the Mortgage Deed in dispute, as he had not examined any attesting witness of the Mortgage Deed in dispute and (ii) that the defendantrespondents were held to be the tenants of the plaintiffappellant and, thus, the Civil Court had no jurisdiction to try the suit of the plaintiffappellant.

The learned lower appellants Court set aside the decision of the trial Court in so far as it had held the defendantrespondents to be tenants of the plaintiffappellant. The finding of the trial Court wherein it was held that the execution of the Mortgage Deed had not been proved, was affirmed. The reason for affirming the same given by the lower appellate Court is that the marginal witnesses of the Deed, Exhibit P1, namely Ramesh Chander, Municipal Commissioner, Abohar, Waryam Chand resident of village Sapanwali and Madan Lal Scribe were not examined. The learned lower appellate Court has held that in case either of the said witnesses (which according to it even the Scribe of the Deed Exhibit P1) would have been examined then the said document would have been admissible in evidence in view of the provisions of section 68 of the Indian Evidence Act. The learned lower appellate Court further held that in Exhibit P8, which is the reply given by the defendantrespondents in response to the Notice Mark ''A'' issued by the lawyer of the plaintiffappellant, there is no clear admission of Harbhajan Singh respondent that the premises in dispute had been mortgaged. The relevant portion of the judgment of the lower appellant Court in reproduced for reference :

"......The execution of the said mortgage deed has been denied by the defendants. The marginal witnesses of the deed Exhibit P1 namely Ramesh Chander, Municipal Commissioner Abohar Waryam Chand son of Raja Ram resident of village Sapanwali and Madan Lal Scribe were the most material witnesses. In case either of the said witnesses would have been examined then the said document would have been admissible in evidence in view of the provisions of Section 68 of the Evidence Act. The facts of this case are quite different from the facts of the aforesaid case. It is noteworthy that the Scribe of Exhibit P1 and marginal witnesses as referred above have not been examined by the plaintiff. Exhibit P3 is the reply of the notice which is mark A. In the said notice there is no clear admission of Harbhajan Singh respondent that the premises in dispute has been mortgaged but it is mentioned that they are going shift the shop after taking permission from the Govt.

"The contents of the said reply Exhibit P3 don''t transpire that the documents have admitted the execution of the mortgage deed, copy of which is Exhibit P1. Therefore without the statement of one of the marginal witnesses or Scribe of Exhibit P1 the said document cannot be said to have been proved. Therefore, the trial Court has rightly decided Issue No. 1 in favour of the defendants and against the plaintiff."

As pointed out by the learned counsel for the appellant, the learned lower appellate Court has certainly gone wrong on facts by holding that Madan Lal Scribe who was one of the most material witnesses to prove Exhibit P1 has not been produced by the plaintiffappellant. It is borne out from the record of the case that Madan Lal Scribe of the mortgage deed, Exhibit P1 has been produced in the Court as PW2 who has categorically stated on oath true translation of which reads as under :

"I have seen the copy of the Mortgage Deed produced by the Registration Clerk. It has been typed by me. I am its Scribe. I had prepared two copies of the Mortgage Deed. One was on the Stamp Paper and the other one is the abovesaid copy. I had written these on the saying of Harbans Singh in favour of Harbhajan Singh and Sunil Kumar. After typing, the contents of the Mortgage Deed were read over to the parties. The parties after accepting the same to be correct, had signed the Mortgage Deed in my presence as well as in the presence of attesting witnesses. The attesting witnesses had also signed before me and the parties. I had made an entry of the abovesaid Mortgage Deed in the Register which I have brought today, at Serial No. 772 dated July 18, 1980. Harbans Singh signed in the Register also. The entry is Exhibit P2."

Exhibit P1 is the certified copy of the Mortgage Deed, dated July 18, 1980. It was produced by the plaintiffappellant by way of secondary evidence when it was not produced by the defendantrespondents which was allegedly in their possession. Registration Clerk of the concerned SubRegistrar''s office, Abohar, Paul Singh (PW1) has proved Exhibit P1, i.e. certified copy of the registered Mortgage Deed, Dated July 18, 1980. Translation of the statement of Paul Singh (PW1) reads as under :

"I have brought the requisitioned record. I have brought the original record of Mortgage Deed, dated July 18, 1980. Two copies of the Mortgage Deed are prepared. After registration, the original one is handed over to the party and one copy is kept in the record of the office. In accordance with the record, Harbans Singh son of Ram Singh had executed the Mortgage Deed in favour of Harbhajan Singh son of Hari Singh and Sunil Kumar son of Basheshar Nath in equal shares, for Rupees Seven Thousand. Mortgage Deed was registered in our office. On the back of the Mortgage Deed, Sub Registrar Hardev Singh had signed, whose signatures I identify. Certified copy of the above Mortgage Deed is Exhibit P1 and it has been issued by our office. It is correct according to the copy issued by our office."

Even according to the lower appellate Court, the Mortgage Deed would have stood proved if Scribe Madan Lal had produced as a witness. The lower appellate Court had erroneously held that Madan Lal Scribe had not been produced in the Court. As a matter of fact, Madan Lal, Scribe of the Mortgage Deed had been produced as PW1 by the plaintiffappellant. Thus, even according to the reasoning advanced by the learned lower appellate Court, the Mortgage Deed stands proved in accordance with the provisions of section 68 of the Indian Evidence Act, as Madan Lal, Scribe of the Deed had admittedly been produced as a witness by the plaintiffappellant.

The trial Court had not even referred to Exhibit P8, the reply to Notice Mark ''A'' which was produced by the plaintiffappellant to prove the admission of Mortgage Deed by the defendantrespondents; but the learned lower appellate Court had misconstrued these documents in order to reach a conclusion that these documents do not transpire that the execution of the Mortgage Deed, copy of which is Exhibit P1, was admitted by the defendantrespondents. It is established from the record of this case that there is only one shop measuring 7''x26'' comprised in Khasra No. 2190/2180/885 min as described in the heading of the plaint which allegedly was mortgaged to the defendantrespondents, though the defendantrespondents had maintained that this very shop was given to them on rent at the rate of Rupees Three Hundred per month. Neither there is any evidence on the record nor any effort was made to bring it on the record that there was some other shop apart from the shop in dispute which was in possession of the defendantrespondents as tenants of the plaintiffappellant. The defendantrespondents claimed to be in possession of the shop in dispute only as tenants, which fact stands belied by the judgment of the lower appellate Court, wherein it has been held that the defendantrespondents were not the tenants in the shop in dispute belonging to the plaintiffappellant. As stated above, the fact that the shop in question is not under the tenancy of the defendantrespondents has become final between the parties. This factual position is fortified even by the statement of defendant Harbhajan Singh who examined himself as his own witness as DW2 when he stated on oath in his examinationinchief, true translation of which reads as under :

"I and defendant No. 2 had started the partnership Firm, M/s Punjab Gun House. For doing the work of this Firm, the shop in dispute was taken from the plaintiff on rent at the rate of Rupees Three Hundred per month on July 1, 1980."

Thus, the disputed shop was the only shop ever transferred to the defendantrespondents by the plaintiffappellant and none else. In view of the settled position borne out from the record of this case, Exhibit P8, i.e. reply of Harbhajan Singh defendantrespondent given to Shri Roshan Lal Ahuja, Advocate, in response to Registered A.D. Notice, dated October 19, 1985 received by him on October 25, 1985 in response to Notice Mark ''A'' served by Shri Roshan Lal Ahuja, Advocate, to defendantrespondent Harbhajan Singh, assumes significance. It has clearly been mentioned in the Notice by Shri Roshan Lal Ahuja, Advocate, calling upon the defendantrespondents to redeem the shop in dispute after receiving the payment of Rupees Seven Thousand from his client. The same shop in dispute has been mentioned and clearly described in the Notice and it has been clearly stated in his reply by defendant respondent Harbhajan Singh, which is Exhibit P8, that they were dealing in arms and ammunitions in that shop and whenever the Government allowed them to shift to another premises, they would vacate the same. The Registered A.D. letter Exhibit P8, i.e. reply in response to the Notice by the plaintiffappellant is reproduced as under :

"M/S PUNJAB GUN HOUSE

ARMS & AMMUNITION DEALERS

Tehsil Road, ABOHAR152116

Regd.A.D. Dated : 1.11.85.

To

Sh. Roshan Lal Ahuja,

Advocate,

Street No. 14,

ABOHAR152116

Sir,

With reference to your Regd. A.D. notice Dated 19.10.1985, received on 25.10.85, regarding vacation of our mortgaged shop from S.Harbans Singh Son of S.Ram Singh S/o Sudagar Singh Alias Sudagarmal shop situated at Tehsil Road ABOHAR.

The following reply is being sent for your kind information.

We are dealing on Arms & Ammunition Dealers in the above name in this shop.

We are going to shift the shop for which we have submitted the application for the permission to the Govt. on 30.10.1985. Whenever the Govt. allow us to shift we will vacate it as according to rule any Arms shop cannot change the approved premises, without the approval of the Government.

Thanking you,

Yours Faithfully,

For Punjab Gun House.

Sd/ Harbhajan Singh

Partner."

From the reply Exhibit P8, it is clear that the defendantrespondents have admitted the factum of mortgage of the shop in dispute in their favour by the plaintiffappellant and it was only later on to defeat the suit of the plaintiffappellant that they changed their stand and denied the possession and transfer of the shop as mortgagees, though they admitted the transfer and possession of the shop in dispute as lessees of the plaintiffappellant.

At the cost of repetition, it is finally established on the basis of decision of the lower appellate Court which stands unchallenged by the defendantrespondents that the defendantrespondents are not the tenants of the shop in dispute.

As discussed in the preceding Paragraphs, mortgage of the shop in dispute by the plaintiffappellant to the defendantrespondent has been established apart from other evidence on the record particularly by (i) the statement of Scribe of the Mortgage Deed Madan Lal (PW2); (ii) the admission of defendantrespondents in the reply Exhibit P8 referred to in the abovesaid Paragraphs; and (iii) the statement of Harbhajan Singh defendant who appeared as his own witness as DW2 in the Court. Though made a general denial of the execution of the Mortgage Deed but he had stated in crossexamination, translation of which reads as under :

"It is possible that I may have signed Exhibit P3. It is possible that I may have given reply Exhibit P3 in respondent to Notice Mark ''A''."

It has been held by the Supreme Court in Nathoo Lal v. Durga Prasad, A.I.R. 1954 S.C. 355, that what is admitted by a party to be true must be presumed to be true unless the contrary is shown. It has further been held by the Supreme Court in Union of India v. Moksh Builders and Financiers Ltd. and others, A.I.R. 1977 S.C. 409, that an admission by a party is substantive evidence of the fact admitted and admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those statements.

It is, thus, established from the overwhelming evidence on the record, as discussed above, that the shop in dispute was mortgaged with possession for Rupees Seven Thousand vide Registered Sale Deed, dated July 18, 1980.

The authority cited by the counsel for the respondents, i.e. Sadhu''s case, (supra) is not applicable to the facts of this case. As indicated above, the learned trial Court had not discussed at all the evidence produced by the plaintiffappellant in order to prove the Mortgage Deed, while the learned lower appellate Court had misread the evidence and misconstrued the documents on the file. Where the findings of the Courts below are vitiated by nonconsideration of relevant evidence or by an essentially erroneous approach of the matter, this Court can certainly intervene even to reappreciate the evidence in a Second Appeal. For this view of mine, I am fortified by a decision of their Lordships of the Supreme Court in Jagdish Singh v. Natthu Singh, A.I.R. 1992 S.C. 1604. The relevant portion of the judgment is reproduced as under :

".......As to the jurisdiction of the High Court to reappreciate evidence in a second appeal it is to be observed that where the findings by the Court of facts is vitiated by nonconsideration of relevant evidence or by an essentially erroneous approach to the matter, the High Court is not precluded from recording proper findings. We find no substance in the first contention."

Bachittar Singh''s case (supra) is also not helpful to the respondents, as the facts in this case are not similar to the factual position stated in the aforesaid authority.

In view of my detailed discussion above, this appeal is allowed and the judgments/decrees, dated April 27, 1988 and October 10, 1990 of the trial Court and lower appellate Court, respectively, are set aside. Consequently, the suit of the plaintiffappellant for possession by way of redemption of the shop measuring 7''x26'' comprised in Khasra No. 2190/1790/835 min described in the plaint, mortgaged vide Registered Sale Deed, dated July 18, 1980 to defendantrespondents Harbhajan Singh and Sunil Kumar is decreed in favour of Harbans Singh, plaintiffappellant and against the aforesaid defendant respondents, on depositing by plaintiffappellant Harbans Singh Rupees Seven Thousand in the trial Court.

Civil Miscellaneous Application stands disposed of accordingly.

In the circumstances of the case, however, I make no order as to costs.