HETRAM SAHU Vs. RAMLAL CHOUHAN

JUDGEMENT

(1.) The appellant/defendant No.1 has filed the instant First Appeal under Sec. 96 of the Code of Civil Procedure, 1908 being aggrieved by the judgment and decree dtd. 20/3/2017 passed by the Additional District Judge, Katghora, District - Korba (C.G.) in Civil Suit No.01-A/2015 whereby the learned trial Court has decreed the suit filed by the plaintiff/respondent No.1 holding that the mortgage deed dtd. 20/9/2006 executed between the plaintiff and defendant No.1 is null and void and the defendant No.1/appellant was directed to handover possession of the suit property within two months from the date of the judgment and decree.

(2.) Brief facts as reflected from the record are that the plaintiff has filed a civil suit before the learned trial court mainly contending that he is a retired SECL employee and in the year 1963 he has constructed four shops on the land belonging to the SECL for which he spent expenditure of Rs.40,000.00 and since then he is in possession of that property. Subsequently, the plaintiff let out two shops out of 4 shops to the appellant/defendant No.1 in the year 2005. Neither the appellant /defendant No.1 has paid the rent nor vacated the shops. Thereafter, the defendant No.1 has executed an agreement in the year 2006 and asked the plaintiff to put his signature on stamp papers as the plaintiff is an uneducated person and the defendant No. 1 knowing about the weakness of the plaintiff has obtained signature of the plaintiff fraudulently in the name of rent deed and executed mortgage deed instead of rent deed. This fact was brought to the notice of the plaintiff in the year 2012 when the defendant initiated proceedings under Sec. 145 of the Cr.P.C., wherein the defendant No.1 has produced the mortgage deed, then only it was brought to the notice of the plaintiff that he has been cheated by the defendant No.1 which has necessitated the plaintiff to file present civil suit. It has been further contended that the plaintiff has neither sold the property nor executed the mortgage. It has also been contended that the Sub Divisional Officer has passed the order under Sec. 145 of Cr.P.C., without considering the fact, therefore, he has prayed for quashing of the order passed by the learned Sub-divisional Magistrate also in the suit. On the factual foundation, plaintiff has prayed for possession of the suit property and also prayed for quashing of the mortgage deed dtd. 20/9/2006 as well as the order passed by the Sub Divisional Magistrate, Katghora, Dist. Korba in case No 144 of 2012 and the order dated passed on 9/11/2012.

(3.) The defendant No.1 filed his written statement denying the allegations made in the plaint mainly contending that in the year 2005 the defendant has taken two shops on rent for which he has paid Rs.10,000.00 as surety and rent was also given 1000/- per month. It has also been contended that the plaintiff has constructed his house at Raipur for which money is required, therefore, the plaintiff has taken Rs.1,20,000.00 on 8/10/2006 after executing the mortgage deed before the notary wherein it has been mentioned that if Rs.1,20,000.00 is not paid within one year then the defendant No.1 will be the owner of the suit property. As such, after execution of the mortgage deed it has not been required for him to pay the rent. It has also been contended that since the defendant No.1 purchased the property on his name, therefore, he has already obtained electricity connection and also got registration in the Municipal Corporation, Korba and running the shops and would submit that the Sub-Divisional Magistrate has also passed the order on 9/11/2012 in favour of the defendant No.1. It has also been contended that the trial court has no jurisdiction to set aside the order dtd. 9/11/2012 passed by the Sub Divisional Magistrate, Katghora. It has also been contended that since SECL was not party to the case, therefore, suit is not maintainable and it has also been contended that the suit is barred by limitation.