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Rakesh Kumar. v. Smt.Hemlata & Ors. - RSA-636-2003  RD-P&H 5189 (3 August 2006)
R.S.A. No.636 of 2003
Date of decision: 08.08.2006
Smt.Hemlata and others.
CORAM : Hon'ble Mr.Justice Mahesh Grover
Present: Shri R.K.Jain, Advocate for the appellant.
Shri Ashwani Gaur, Advocate for respondent nos. 1 to 5.
Shri H.L.Bhatia, Advocate for respondent no.6.
Briefly stated the facts of the case are that one Bhagwati Parshad (respondent nos. 1 to 5 are his legal heirs) had filed a suit against the defendant-appellant for possession by way of redemption on the ground that shop in question was mortgaged with possession with the appellant vide mortgage deed bearing document no.627 dated 22.5.1985 registered in the office of Sub Registrar, Ballabgarh for a consideration of Rs.3000/- and that he was now ready to get the mortgage redeemed by paying the sum of Rs.3000/- to the appellant. This amount was offered to the appellant, but he refused to accept the same and this led to the filing of the suit.
The appellant resisted the suit and pleaded that it was not a mortgage, but he was a tenant on the premises in question and had been paying a rent of Rs.200/- per month.
On the pleadings of the parties, the trial Court framed as many as four issues, out of which relevant would be issue no.1 which is reproduced below:-
"1. Whether plaintiff is entitled to possession of the shop in dispute by way of redemption on depositing a sum of Rs.3000/-?OPP"
During the pendency of the suit, the said Bhagwati Parshad died and his legal heirs were brought on record, who are respondents in the present appeal.
The trial Court, after examining the evidence on record, decreed the suit of the respondents and directed that vacant possession of the suit property be given back to them within a period of two months from the date of judgment. The respondents were also directed to deposit a sum of Rs.3000/- in the Court within one month.
An appeal ensued and the lower Appellate Court dismissed the same. The directives of the trial Court were also maintained.
In the present appeal, the only question that has been raised by the learned counsel for the appellant is that the mortgage was for a sum of Rs.3000/-, whereas the value of the property as per the statement of Bhagwati Parshad himself, was Rs.50,000/- at the time of execution of the mortgage deed and, therefore, it cannot be termed to be a mortgage and rather, it was a sham transaction to evade the provisions of the Rent Control Act. In support of his contention, he relied upon a judgment of this Court reported as 1984 Haryana Rent Reporter 368 -Radhey Sham and othrs Versus Kaushalaya Devi of Kot Kapura (Faridkot).
Learned counsel for the respondents, on the other hand, submitted that the appellant had set up a plea of tenancy which was disbelieved by the Courts below and these are the findings of fact which cannot be gone into in a Regular Second Appeal. He submitted that once the plea of the tenancy fails, then the mortgage deed has to be accepted as correct.
Having considered the submissions of the learned counsel for the parties and perused the record, I am of the opinion that the appeal deserves to fail. The appellant had setup the plea of tenancy and had stated that he was paying Rs.200/- per month as rent to Bhagwati Parshad. No such evidence was adduced by the appellant to substantiate this plea that he was paying rent of Rs.200/- per month to Bhagwati Parshad. No accounts of the shop were produced and even the house tax receipts which he had produced do not inspire confidence as in one of the receipts issued by the Municipal Committee, it is shown that the appellant was paying Rs.200/- per month and in the other, it is written as Rs.100/- per month. Apparently, these receipts have been doctored. As against this evidence of the appellant, there was the mortgage deed which was duly registered. In view of this, both the Courts had rightly relied upon the same and had held that the tenancy was not proved. Rather, the mortgage deed which was a registered document was a conclusive proof of the mortgage.
The judgment relied upon by the learned counsel for the appellant is not applicable to the facts of the instant case. In the case cited, the plea of tenancy raised had been established, but in this case, the appellant has failed to prove his tenancy.
In view of the fact that both the Courts below have recorded a concurrent finding of fact negating the plea of tenancy as set up by the appellant, the present appeal is devoid of any merit and is dismissed as such and the suit of respondent nos. 1 to 5 is decreed and the appellant is directed to hand over vacant possession of the suit property within a period of four months from the date respondent nos. 1 to 5 deposit a sum of Rs.3000/- before the Executing Court.
August 08,2006 ( Mahesh Grover )
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