DEEPAK SABLOK Vs. KAMLA

JUDGEMENT

(1.) The present regular second appeal by the defendant's legal representative is directed against the concurrent findings of the Courts below at Shaheed Bhagat Singh Nagar dtd. 27/10/2016 and 15/7/2019, whereby the suit of the plaintiffs-respondents was decreed for possession by way of redemption for the land measuring 3 marlas on which two shops were constructed details of the revenue record of which are given in the head note of the plaint and the appeal was dismissed.

(2.) The preliminary decree was passed by the Trial Court on 27/10/2016 by coming to the conclusion that the mortgage deed dtd. 11/8/2004 (Ex.P5) on the basis of which the suit was filed had not been specifically denied and, therefore, the provisions of Sec. 68 of Indian Evidence Act, 1872 (for short 'Evidence Act') would be of no help as such since it was a registered document. The Trial Court came to the conclusion that since a plea had been taken that the defendant-appellant was in possession as a tenant prior to the execution of the mortgage deed would so far amount to admission on the part of the defendant regarding the said document. It was also noticed that none of the legal representatives of Deepak Sablok had appeared in the witness box to substantiate the plea taken and only DW-1 Dinesh Kumar had stepped into witness box, who was neither the power of attorney and therefore, it was held that plaintiff is able to prove the mortgage deed. The plea that the defendant was a tenant as such and his rights are to be protected under the East Punjab Urban Restriction Act, 1949 (for short 'Rent Act') was thus rejected on the ground that party who asserts any fact the burden to prove the said fact would be upon that party.

(3.) It was also noticed that no such recital of tenancy of the shops in dispute were mentioned in the mortgage deed and in the absence of any cogent evidence proved on record by the defendant that the shop in dispute prior to the execution of the mortgage deed was in his possession, the defence as such was not accepted. It was also noticed that the mortgager Darshan Lal and the mortgagee Deepak Sablok were closely related to each other being relatives and possession of the shop was handed over to Deepak Sablok. Mere placing on record the electricity bills prior to the execution of the mortgage deed did not prove that he was in possession of the property prior to execution of the mortgage deed as a tenant. Darshan Lal having expired, mutation of his estate had been entered in favour of plaintiff being his Class-1 legal heirs and the plea that plaintiffs were not legal heirs was accordingly rebutted while deciding the predominant issues No.1, 2 and 4, which were subject matter inter se the parties.