High Court of Punjab and Haryana, Chandigarh
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KAUR SINGH v. MUKHTIAR SINGH & Ors - RSA-1956-1987  RD-P&H 28 (31 May 2005)
Kaur Singh v. Mukhtiar Singh and others
Present:- Mr.R.S.Sandhu, Advocate,
for the appellant.
Ashutosh Mohunta, J.
The defendant has filed this appeal to challenge the judgment and decree dated 26.3.1987 passed by the Additional District Judge, Sangrur, whereby plaintiff Mukhtiar Singh, has been held to be entitled to the recovery of Rs.16500/- from defendant Kaur Singh.
I have heard the learned counsel for the appellant and examined the evidence adduced on record.
The only question that arises for consideration in the present appeal is to the following effect:-
Whether plaintiff Mukhtiar Singh is entitled to recover the amount of the mortgage amount of Rs.16,500/- from defendant Kaur Singh as he had already alienated the land in question by suffering the consent decree in favour of his brothers?
Undisputedly, the appellant had mortgaged the land measuring 27 Kanals 17 Marlas in favour of respondent Mukhtiar Singh on 4.7.1977 and had R.S.A.No.1956 of 1987
obtained the mortgage money of Rs.16,500/-. It was a registered mortgage.
Thereafter, he suffered the consent decree dated 3.5.1978 passed by the Sub Judge Ist Class, Sunam, and alienated the suit land in favour of his brothers. The appeal filed by Mukhtiar Singh against the judgment dated 3.5.1978 was also dismissed by the Additional District Judge on 20.3.1979. The said judgments attained finality as no further appeal was filed by Mukhtiar Singh. Thereafter, Mukhtiar Singh filed the suit for possession of the suit land and in the alternative the recovery of Rs.16,500/- was prayed for. During the course of argument, a suggestion was put by the Sub Judge Ist Class, Sunam, to the counsel appearing on behalf of Mukhtiar Singh as to which of the two reliefs, i.e., recovery of Rs.16,500/- and the possession of the suit land, he would like to be given to him in the first alternative. He counsel preferred the possession of the suit land to the recovery of Rs.16,500/- The trial Court wrongly decided the issue of recovery of Rs.16,500/- to have been given up. As the issue of possession of the suit land was decided against the plaintiff-respondent, he was also not granted the relief of recovery of mortgage money. In such a situation, I am of the considered opinion that it was not the intention of the counsel for the plaintiff to forego the recovery of the mortgage money even though his prayer for possession of the suit land was declined by the Court. It could only be if option was given to the counsel to R.S.A.No.1956 of 1987
choose the alternatives. Thus, the trial Court wrongly decided that the issue of recovery of Rs.16,500/- had been given up the counsel for the plaintiff. The lower appellate Court has rightly set aside the judgment and decree dated 31.3.1983 passed by the Sub Judge Ist Class, Sunam.
In the light of the above, there is no merit in this appeal. It is, accordingly, dismissed.
May18, 2005. ( Ashutosh Mohunta )
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