Rajinder Kumar vs Bagicha Singh

Rakesh Kumar Jain, J.—The plaintiff is in appeal against the judgment and decree of both the Courts below by which his suit for possession of land measuring 20 kanal 19 marlas has been dismissed. The plaintiff has alleged that the suit land was owned by Bagicha Singh-defendant who mortgaged the same to the plaintiff for Rs. 4 lacs vide registered mortgage deed dated 09.08.2004 and delivered possession. It was agreed that the period of mortgage would be from Sauni 2005 to 10 crops, but thereafter the defendant had forcibly taken the possession and did not give the possession to the plaintiff who had moved an application to the police but to no avail. It is further alleged that the period of mortgage had not expired and the property in dispute has not been redeemed but the defendant has refused to re-deliver the possession of the suit land. Hence, the present suit has been filed for possession.

In the written statement, it was alleged that the defendant is the owner of the suit land, but the alleged mortgage by the defendant in favour of the plaintiff was denied.

On the pleadings of the parties, following issues were framed by the Trial Court:-

"1. Whether the defendant executed registered mortgage deed dated 09.08.2004 in favour of the plaintiff and delivered possession of suit property? OPP.

Whether the plaintiff is entitled for possession of suit land, as prayed for? OPP.

Whether the suit filed by plaintiff is not maintainable in its present form, hence liable to be dismissed? OPD.

Relief."

The suit of the plaintiff was dismissed by the Trial Court on 03.06.2010 and the said judgment and decree was maintained by the lower Appellate Court on 25.01.2011.

The Trial Court had observed under issues No. 1 and 2 that the plaintiff has failed to examine any attesting witness of the mortgage deed and the scribe cannot be considered to be an attesting witness. Moreover, the plaintiff did not give any specific date of dispossession by the defendant. The lower Appellate Court relied upon judgment of the Supreme Court in the case of Thakar Varjlal Bhimjee v. Thakar Jamnadas Vijee and another, 1996 (1) Civil Court Cases 151 (S.C.), in which it has been held that the mortgage deed is required to be proved by producing at least one of the attesting witnesses. Since the plaintiff failed to examine any attesting witness, it was held that the mortgage deed was not duly executed. It has also been recorded that Sewa Singh (PW 3), who had allegedly scribed the deed, had also stated that the parties was not known to him personally and no consideration was paid in his presence.

Learned counsel for the appellant has submitted that if the scribe has attested the document, then he is to be treated as an attesting witness and has relied upon the following judgments:-

Babu Singh and Others Vs. Ram Sahai @ Ram Singh, ; and

Pulipati Rajarao Vs. Gondrala Sithamahalakshmi and Others, ;

On the other hand, counsel for the respondent has submitted that according to the case of the plaintiff, there were two attesting witnesses to the mortgage deed, namely, Sewa Singh and Satnam Singh. The mortgage deed was drafted by the Deed Writer Nachhattar Singh. The plaintiff had examined Sewa Singh-attesting witness and tendered his affidavit as Ex. PW 2/A, but the said witness, was given up on 03.12.2009 and was not presented for the purpose of cross-examination. The other attesting witness, namely, Satnam Singh was though alive but not examined. The entire case has been based upon the statement of the Deed Writer Nachhattar Singh who has been examined as PW 3. It is further submitted that Satnam Singh was not examined on the ground that he has gone abroad but no evidence has been led to prove the alleged fact. Insofar as the scribe is concerned, he had alleged that Rs. 4 lacs were received by the defendant in the presence of the attesting witnesses and the Joint Sub Registrar but in his cross-examination, he has admitted that the amount was not paid in his presence and once the Joint Sub Registrar and the attesting witnesses have not been produced, the statement of the scribe alone cannot be believed.

I have heard counsel for the parties and examined the available record.

The case set up by the plaintiff is that he is in possession of the suit property by way of mortgage but the defendant forcibly took possession from him, though the mortgage period had not expired. He had thus prayed in the suit that the possession of the suit property may be re-delivered to him from the defendant till it is duly redeemed. Since the whole case revolved upon the execution of the mortgage deed, the Courts below have decided that the plaintiff had to prove the mortgage deed by producing at least one attesting witness, as held in the case of Thakar Varjlal Bhimjee''s case (supra). There were two attesting witnesses of the alleged document, namely, Sewa Singh and Satnam Singh. Though the plaintiff had tried to produce Sewa Singh as PW 2 and tendered his affidavit in his examination-in-chief (Ex. PW 2/A) but chosen not to produce him in the witness box for the purpose of cross-examination and was given up on the pretext that he has been won over. The other attesting witness Satnam Singh is alleged to have gone abroad but no evidence has been brought on record to prove that fact. Thus, the sole reliance has been placed upon the statement of a scribe who does not know about the parties himself and the amount of consideration has not been passed on in his presence.

In Pulipati Rajarao, the issue was with regard to due execution of the Will. In that case, the first attesting witness had died and whereabouts of the second attesting witness were not known. The Court held that in this situation, the scribe who have de posed in his examination to his witnessing the act of signing of Will by executants and the attesters satisfactorily prove the fact of due execution of the Will. This judgment is not applicable to the facts and circumstances of the present case because here both the attesting witnesses are alive and Sewa Singh, who had been sought to be produced as PW 2, has not been offered for cross-examination on the solitary ground that he has been won over. This statement of counsel for the plaintiff for not producing the said attesting witnesses for the cross-examination that he has been won over is not satisfactory and inspires confidence. The best course would have been to produce the said witness as PW 2 for cross-examination and in case he would have stated entirely against the interest of the plaintiff, then he could have been declared to be hostile and not in the manner in which his appearance for the cross-examination has been avoided. The other attesting witnesses, namely, Satnam Singh was available, though he has gone abroad, but no evidence has been brought on record to prove this fact, therefore, it cannot be believed that whatever has been stated by the plaintiff is correct.

The other judgment relied upon by counsel for the appellant in Babu Singh and others'' case, (supra) is also not applicable to the facts and circumstances of the present case because in that case also, the attesting witnesses were not available.

Even otherwise, the plaintiff has failed to prove on record the date on which he had been dispossessed by the defendant from the suit land for the purpose of seeking possession of the property in dispute. In view of the aforesaid discussion, finding no question of law much-less substantial involved therein, the present appeal is hereby dismissed.