BRIJ LAL Vs. GIAN PARKASH SOOD

JUDGEMENT

(1.) CM No.12346-C of 2010 For reasons mentioned in the application which is accompanied by affidavit, delay of 5 days in re-filing the appeal is condoned. CM No.12347-C of 2010 For reasons mentioned in the application which is accompanied by affidavit, delay of 5 days in filing the appeal is condoned. Main appeal Defendants having failed in both the Courts below are in second appeal. Defendant-appellant No.1 Brij Lal is sole proprietor of defendant-appellant No.2-M/s Brij Lal Tilak Raj. Suit was filed by RSA No.4108 of 2010 (O & M) respondent-plaintiff Gian Parkash Sood against the appellants for possession of disputed shop by redemption of mortgage thereof. The plaintiff alleged that he mortgaged the disputed shop with defendants for Rs.5000/- vide registered mortgage deed dated 11.08.1978 to be redeemed after five years. The mortgage was with possession. However, on demand, the defendants refused to redeem the mortgage, necessitating the filing of the suit. Ancillary relief of permanent injunction was also claimed.

(2.) DEFENDANTS broadly denied the plaint allegations. It was pleaded that defendants are tenants in the disputed shop alongwith other property since prior to the year 1972. It was alleged that the plaintiff succeeded in getting the mortgage deed dated 11.08.1978 executed to overcome the provisions of the Rent Restriction Act. Various other pleas were also raised.

(3.) I have heard learned counsel for the appellants and perused the case file. Plaintiff examined scribe of the mortgage deed and also one attesting witness of the mortgage deed to prove its due execution. In fact even the defendants in the written statement have admitted the execution of the impugned mortgage deed. Even in the witness box, defendant No.1 admitted his signatures on the mortgage deed, but stated about threat and undue influence which is not proved. The defendants, pleaded that the mortgage deed was somehow procured by the plaintiff. The defendants implied to plead that the mortgage deed was obtained under threat and coercion. However, defendants have miserably failed to prove the said version. The mortgage deed is registered one and mortgage money was also paid at the time of registration of the mortgage deed in the presence of Sub-Registrar. It also reasonably rules out threat or coercion. Defendant No.1 himself also admitted that he was not under any threat or pressure when the mortgage deed was executed. He admitted that he executed the mortgage deed without coercion. Moreover, the mortgage deed is dated 11.08.1978 whereas the suit was filed on 14.03.2001 i.e more than 22 years after the execution of the mortgage deed. However, during this long intervening period, the defendants never challenged the mortgage deed in any manner. If the mortgage deed had been obtained under threat or coercion or if the mortgage had been a sham transaction to avoid the provisions of the Rent Act, the defendants would have challenged it soon after it was executed.