Hargovind Singh vs Dayaram

Rohit Arya, J.—This appeal by defendant no. 1 is directed against the judgment and decree dated 25/7/2008 in Civil Appeal No. 4-A/2007 confirming the judgment and decree dated 29/9/2006 in Civil Suit No. 10-A/2005.

Plaintiff is a 75 years old and an illiterate person. He claims to have title and in possession of the suit house admeasuring 828 sqft. situated in Ward No. 3 village Gohad, District Bhind. In order to meet expenses of his son''s marriage, plaintiff had mortgaged the suit house on 27/6/1994 with the defendant no. 1 for Rs. 8,000/-, however, plaintiff continued to be in possession thereof. Agreement had bore a condition that the mortgaged suit house shall remain the property of plaintiff. The plaintiff shall pay interest at the rate of 3% per month and alongwith interest the principal amount shall be paid within three years i.e. upto 27/7/1997 and the property shall be redeemed. In the event of failure of full payment of amount advanced, defendant no. 1 was set at liberty to recover the amount alongwith interest by instituting appropriate proceedings. Plaintiff was prepared to pay whole loan amount advanced and offered the same on 14/1/1997, but the same was avoided by defendant no. 1 under one or other pretext. Plaintiff sent a notice on 3/7/1999 for redemption showing his willingness and readiness for redeeming the suit house, the same having yielded no result, he filed a suit before the Civil Judge, Class-II, Gohad, District Bhind u/s 83 of the Transfer of Property Act, which was registered as civil suit No. 7/1999, however, the same was dismissed on 21/12/1999 with liberty to the plaintiff to file a suit for redemption of the suit property. Accordingly, plaintiff filed the instant suit inter alia contending that the suit house is of plaintiff''s ownership and possession. Plaintiff has never entered into any agreement to sale with the defendants nor has plaintiff ever executed any sale deed in favour of defendants and, therefore, sought a declaration that the suit property be redeemed on payment of advanced amount.

Defendants filed separate written statement and denied the plaint allegations. It is inter alia contended that initially the plaintiff had taken loan of Rs. 8,000/- with 3% interest per month for three years payable on or before 27/7/1997 with interest in one installment. However, instead of paying the aforesaid loan amount, plaintiff again approached defendant no. 1 for further advancement of loan and accordingly, Rs. 5,000/- was again given to the plaintiff and the plaintiff had entered into an agreement on 27/10/1997 for sale of suit house for a consideration of Rs. 35,000/- and thereafter the amount outstanding towards payment was adjusted. Possession of the suit house was delivered to defendant no. 1. It is further submitted that prior to institution of instant suit, the suit house was transferred in favour of defendants no. 2 and 3 vide registered sale deed dated 16/7/1999 on payment of full consideration. Plaintiff at no point of time ever volunteered or tendered the amount due to him for redemption of the mortgaged suit house and, therefore, the story framed by the plaintiff in the suit is the product of concoction and fabrication. With the aforesaid pleadings, defendants prayed for dismissal of the suit.

On aforesaid pleadings, trial court framed issues and allowed the parties to lead evidence. The trial court framed the following issues:-

Trial Court on critical evaluation of evidence on record, found issue nos. 1, 3, 4 and 5 proved and answered in affirmative and issue nos. 2 and 7 were answered in negative against defendant no. 1. Accordingly, trial court decreed the suit holding that plaintiff is entitled for redemption of the suit property on payment of loan amount with 8% interest within two months. In the event the amount as ordered is not accepted by defendant no. 1, the same may be deposited with the Court by the plaintiff and on such deposit the suit house shall be free from mortgage and stand redeemed. Defendant no. 1 challenged the judgment and decree of the trial court by preferring an appeal. During pendency of appeal, appellant/defendant no. 1 filed certain interlocutory applications viz. (i) & (v) under Order XLI Rule 27 of

CPC; (ii) under Order VI Rule 17 of CPC; (iii) Section 151 of CPC praying for decision on aforesaid interlocutory applications at first instance before adverting to the merits of the appeal; (iv) an application filed by defendant no. 2-Jaswant inter alia praying that the sale deed executed on 16/7/1999 may be taken on record; and, (vi) for framing of additional issue. The first appellate court has dismissed the aforesaid interlocutory applications by a well reasoned order, which, in the opinion of this Court, is self explanatory. Accordingly, the same do not warrant any interference, as the aforesaid interlocutory applications bore no explanation as to why for six and half years when the suit was pending, as it was filed on 12/1/2000 and decided on 29/9/2006, the aforesaid interlocutory applications were not filed. Besides, the court has considered relevancy of aforesaid interlocutory applications in the context of merits of the suit. Issue nos. 1, 2 and 7 were mainly challenged in the appeal before the first appellate court by the defendant no. 1. The appellate court re-appreciated the entire evidence on record and also scrupulously examined the findings recorded by the trial court from paras 9 to 13 while addressing on issue nos. 1, 2 and 7 and found that the findings so recorded are based on impeccable appreciation of evidence on record and do not warrant interference. Accordingly, dismissed the appeal confirming the judgment and decree passed by the trial court.

Having gone through the impugned judgments and material on record, this Court is of the view that the courts below have not committed any error of law. Findings so recorded are based on proper appreciation of evidence on record and are impregnable in nature. The entire gamut of the matter is in the realm of facts. No question of law much less substantial question of law arises in this appeal warranting interference u/s 100 of CPC. Counsel for the appellant/defendant no. 1 has relied upon the judgments in Madan Mohan Vs. Gauri Shankar and Another, and Munnalal Singh and Others Vs. Atmaram (Hemraj, Bhagat ram, Bhoj raj and Smt. Sumitra Bai) and State of M.P., however factual matrix in the case in hand is altogether distinguishable. The Second Appeal sans merits is hereby dismissed.