Manjit Kaur vs Harbans Lal (deceased) through L.Rs.

N.K. Kapoor, J.—This is defendant''s regular second appeal against the judgment and decree of Additional District Judge whereby appeal filed by the plaintiffs was accepted thereby decreeing their suit.

Briefly put, plaintiffs filed a suit for possession on the ground that vide agreement to mortgage the suit and land dated 20.2.1980, they agreed to mortgage the suit land to one Shri Jhanda Singh defendant and put him in possession as a prospective mortgagee. Mortgage deed was to be subsequently registered on or by 15.6.1981, but the same was not executed nor the balance of the mortgage amount was paid. So, since the limitation for specific performance of the mortgage has expired, plaintiffs claimed possession on the basis of title.

Defendants resisted the suit on the ground that civil Court has got no jurisdiction; that they are in cultivating possession of the suit land as tenants prior to the date of agreement to mortgage and so are protected under the Punjab Land Laws. Ownership of the plaintiffs was however admitted. Execution of mortgage was denied.

On the pleading of the parties a number of issues were framed relating to the execution of agreement to mortgage dated 20.2.1980 as well as whether defendants are in cultivating possession of suit land as tenants of the plaintiffs suit of the plaintiffs was dismissed.

In appeal the lower appellate Court examined the matter afresh, found substance in the pleas advanced by the appellants and the Court finally came to the conclusion that defendant No. 1 came into possession on the basis of agreement to mortgage 20.2.1980 and so the plea of the defendants that they are in possession of the suit land as tenants at will was without any substance. The lower appellate Court consequently accepted the appeal, thus decreeing the suit as prayed for.

Challenging the finding recorded by the lower appellate Court the counsel for the appellants has termed it to the wholly illegal and otherwise un warranted on facts. According to the counsel agreement to mortgage dated 20.2.1980 in fact has wrongly been taken to have been proved. In fact this document does not bear the signatures of Harbans Lal nor there is any cogent evidence on record to conclude that Jhanda Singh signed/thumb marked this document. In any case since Jhanda Singh has not been examined such a document could not be made basis for decree in the suit of the plaintiffs. Otherwise too, the Court below erred in law in ignoring the entries in revenue record which record Gurmej Singh, one of the defendants in possession of the suit land had that too prior to the execution of agreement to mortgage.

Having heard the learned counsel for the parties for a considerable time and on perusal of the judgments of the Courts below I am of the view that the appeal is wholly devoid of any substance. It is conceded case of the parties that the plaintiffs are owners of the suit land. The Court below on appraisal of the evidence has come to the conclusion that agreement to mortgage came into existence on 20.2.1980. In fact, scribe of this document Bishan Dass and an attesting witness to this document have come in witness box and deposed as to the authenticity of this document. No doubt Jhanda Singh has not come into witness box but this is for the reason that before he could be examined unfortunately he expired. As a matter of fact Jhanda Singh has not come forward to contest the suit. The other defendants/the present appellants are legal representatives of Gurmej Singh and Manjit Kaur is daughter of Jhanda Singh. Interestingly, on document Exhibit P1 Gurmej Singh is one of the attesting witnesses. Thus, the conclusion arrived at by the lower appellate Court that the document, Exhibit P1, has been proved according to law cannot be said to be vitiated in any manner. As regards the plea of the appellants that their possession of the suit land is as tenantsatwill is too without any substance. There is no proof on record that during all these years or at any given time the defendants or their predecessorsininterest at any time paid rent in respect of the suit land or there exists any agreement of tenancy. Precisely for this reason some stray entry in the revenue record has rightly been ignored by the lower appellate Court. Appeal thus being devoid of any substance is consequently dismissed.

No order as to costs.