WASSAN SINGH Vs. LAKHA SINGH

JUDGEMENT

(1.) THE following substantial questions of law arise for consideration in the second appeal: -

(2.) THE suit was filed by the plaintiffs claiming themselves to be the owners of the property as legal representatives of one Achharo and Jawali, who, in turn, obtained title to the property by a gift from their father Veer Singh. It was an admitted case that Achharo had mortgaged the property in favour of Arjan Singh and Surta Singh on 07.03.1972. The plaintiffs would contend that the defendants 1 to 3 had claimed the property as though they had purchased the property from them. The plaintiffs had not sold the property and, therefore, they are entitled to recover possession of the property.

(3.) SINCE the plaintiffs had denied the execution of the sale deed and contended that they had not executed the same at all, the trial Court directed the thumb -impressions found in the sale deed to be compared with the admitted signatures of the parties taken in the presence of the Court. The parties were identified by the plaintiffs' counsel and the thumb -impression of three parties, namely, Mohindero, Giano and Mukha Singh, who are respectively plaintiffs 4, 3 and 2, were taken in the presence of the subordinate Judge on 17.12.1982. Lakha Singh's thumb -impression had been taken by the subordinate Judge at Tarn Taran separately on 17.12.1982, the person having been identified again by the counsel. The original sale deed had not been produced by the defendants and, therefore, the register containing the thumb -impressions from the Registrar's office had been brought to Court and taken for comparison. The plaintiffs' counsel had proposed interrogatories to be submitted to the Fingerprint Expert for eliciting answers on the reports prepared by them and the counsel appearing on behalf of the defendants had also given replies to the formulation of interrogatories. The expert also gave his response to the interrogatories proposed giving his evidence making a comparison to thumb -impressions found in the Bahi of the Registrar's office and opining that the thumb - impressions did not tally with the sample thumb -impressions taken by the Court in its presence. Both the courts below have relied on the report of the thumb -impression expert to find that the thumb impressions found in the sale deed were not that of the plaintiffs and, therefore, decreed the suit. In so doing, they were also rejecting a plea of the defendants that they cannot also be subrogated to the position of a mortgagee, although evidence was given by the mortgagee that the amounts had been paid by the defendants 1 to 3 and they took possession through them. The original mortgage in their favour had been exhibited as D2. The Court relied on decisions of several High Courts to hold that a person, who has no interest in the subject matter, cannot discharge a mortgage and take possession and press for a right to be subrogated to the position of a mortgagee. The court held that consistent with its finding that the sale in favour of defendants 1 to 3 was not true, the suit for recovery of possession cannot be resisted by such a person, who had volunteered to make the payment.