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Rajinder v. Raghubir etc. - RSA-3968-2004  RD-P&H 1657 (10 March 2006)
RSA No.3968 of 2004(O&M)
Date of Decision: 7.03.2006
CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH
Present: Shri S.S.Godara, Advocate for the appellant Shri Hari Om Attri, Advocate for respondent No.1 Shri Praveen Bhadu, Advocate for respondent No.2 Shri Puneet Gupta, Advocate for respondent Nos.11 and 22 JUDGMENT
By alleging himself as owner to the extent of 27 kanals 19 marlas of land, in the joint khewat, total consisting of 121 kanals 8 marlas, appellant plaintiff filed a suit for declaration that the mortgage deed, in favour of respondent Nos.10 and 11, be declared null and void having been executed by his father without any right in the property. He further prayed that injunction be issued in his favour, restraining the respondents, referred to above, from alienating the property, in dispute, by way of auction. Suit was dismissed. He also failed in appeal. It is apparent from the records that in this case, family members have joined hands to deceive and play a fraud with a public institution. As per facts on record, father of the appellant suffered one collusive decree in his and his brother's favour in the year
1994. Mutation was got entered. However, subsequently, proceedings, before the revenue authorities, were allowed to be dismissed in default.
Thereafter, it appears that one firm was constituted by the family members of brother of the appellant and father of the appellant, knowing fully well that he had already suffered a decree in favour of the appellant and other family members, stood as a guarantor and mortgaged 64 kanals of land.
When the other family members of the appellant failed to return loan amount of Rs.16 lacs, proceedings to recover the same were initiated by respondent Nos.10 and 11. At that stage, present suit was filed. Both the Courts below have found it as a matter of fact that an attempt has been made by the appellant, his father and other family members, to deceive respondent Nos.10 and 11. It has come on record that even after passing of decree in the year 1994, entries in the revenue record and also entry regarding nehri girdawari, allowed to remain in the name of father of the appellant and this fact had facilitated execution of the mortgage deed by father of the appellant in favour of respondent Nos.10 and 11.
Contention of counsel for the appellant that some land, which has fallen to his share, was also mortgaged and as such, the mortgage deed be set aside, is not justified. Everything has happened in the family. If any loss has been caused to the appellant, he may recover the same, as per law, from other family members for whom loan was raised. No case is made out for interference in pure findings of fact.
March 07, 2006 ( Jasbir Singh )
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