Rachhpal Singh vs Sohan Singh

J.V. Gupta, J.—This is Plaintiff''s second appeal whose suit for possession by way of redemption was dismissed by both the courts below.

It is alleged that the land measuring 25 Kanals 5 marlas was mortgaged by the father of the Plaintiff with the father of the Defendant for a sum of Rs 370/- in year 1939, situate in village Phulkian, Tehsil and District Sialkot (now in Pakistan). It was alleged that after the partition of the country, the Plaintiff was allotted land in lieu of land left by his father in West Pakistan and the Defendant was shown as the mortgagee of the suit land, being the adopted son of the original mortgagee. The Defendant in his written statement alleged that full particulars of the mortgage have not been given and there was no subsisting mortgage capable of being redeemed. The right of the Plaintiff to redeem the alleged mortgage, its amount and date of the mortgage were all denied. The trial Court found that the Plaintiff had failed to prove that the mortgage was actually effected and the same was subsisting at the time of the filing of the suit, on 10th June, 1971. Consequently, he dismissed the Plaintiff''s suit.

In appeal the learned Senior Sub Judge with enhanced appellate powers endorsed the findings of the trial Court and dismissed the Plaintiff''s appeal. Dissatisfied with the same, the Plaintiff has come to this Court in second appeal.

During the pendency of this appeal, the Plaintiff Appellant moved an application C.M. No. 469-C of 1984 under Order 23 Rule 3 read with Section 151 of the CPC for recording the adjustments made between the parties. Alongwith the said application a receipt dated 28.3.1977 said to have been executed by the Defendant was also produced. A notice of this application was given to the Defendant. In the reply filed on behalf of the Defendant it was denied that any such receipt was executed between the parties. Under these circumstances, vide this Court''s order dated 12th March, 1984 the trial Court was directed to make its report with regard to the said receipt. The trial Court after recording the evidence of the parties, made its report dated 6th August, 1984. After discussing the entire case, the trial Court found that the receipt (Exhibit RP-1) is forged and fabricated. It was never executed by Sohan Singh and that he never received the mortgage money.

The Learned Counsel for the Appellant contended that the reasons given by the trial Court for coming to the conclusion that the receipt was not a genuine document, are not tenable. According to the Learned Counsel, the delay in filing the receipt was explained in this Court earlier and, therefore, that could not be a ground for coming to the conclusion that the receipt was not genuine.

After hearing the Learned Counsel for the parties and going through the report, I find no merit in this appeal. The trial Court discussed the entire evidence produced by the parties and then came to the conclusion that receipt (Exhibit RP-1) was not a genuine document. Not only this, the trial Court has given a firm finding that the receipt is forged and fabricated. In this view of the matter, nothing could be urged on merits in appeal otherwise because no evidence on the record has come to show when the mortgage had taken place or whether it is still subsisting or not. Consequently, the appeal fails and it dismissed with costs.

Since it has been found that the receipt was a forged and fabricated document, it is directed that a notice be issued to the Appellant to show cause why he may not be prosecuted for fabricating the receipt (Exhibit RP-1).