MAHABIR Vs. SADHU RAM

JUDGEMENT

(1.) THIS is plaintiff's appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') challenging concurrent findings of facts recorded by both the Courts below.

(2.) IT has been concurrently found that the plaintiff-appellant has failed to establish by adducing any evidence that he has become owner of the suit land. The judgment and decree Exs. P1 and P-2 respectively dated 19.12.1988 were obtained by the plaintiff-appellant when all the defendant-respondents were proceeded ex parte. The plaintiff-appellant was found to be in possession of the suit land on the basis of a mortgage deed executed in favour of one Rattan Singh and the aforementioned Rattan Singh is alleged to have transferred his mortgagee rights to the plaintiff-appellant. On the aforementioned basis, the defendant-respondents were restrained from interfering in possession of the plaintiff-appellant over the suit land except in due course of law. The aforementioned judgment and decree did not declare the title of the plaintiff-appellant. In the suit it has been claimed that the plaintiff- appellant has got transferred mortgagee rights in respect of the suit land in his favour by making the payment of Rs. 5,000/- to Rattan Singh. However, no document has been placed on record which may inspire confidence. The document showing the mortgage in favour of Dewan Singh by Chandu and transfer of mortgagee rights in favour of the plaintiff-appellant are unregistered documents and, therefore, have been held to be inadmissible in evidence as per Section 17(2) of the Indian Registration Act, 1908 (for brevity, 'the Act'). Those documents were marked as Mark 'C' and Mark 'D'.

(3.) MR . S.K. Jain, learned counsel for the plaintiff-appellant has vehemently argued that possession of the plaintiff-appellant under the judgment and decree dated 19.12.1988 Exs. P-1 and P-2 in respect of Khasra No. 22 Rect. No. 43 would continue to remain intact which cannot be disturbed by the Courts below by dismissing the suit of the plaintiff-appellant. He has also urged that under Order XX Rule 5 read with Order XIV Rule 2 of the Code even if issues No. 2 and 3 were not pressed, the Courts were under an obligation to record the findings on the aforementioned issues. In support of his submission, the learned counsel has placed reliance on a judgment of this Court in the case of Banarsi Das and another v. Balwant and others, 2001(3) PLR 479 and a Division Bench judgment of Himachal Pradesh High Court in the case of Om Prakash and others v. State of Himachal Pradesh and others, 2000(3) RCR(Crl.) 735 (H.P.) : AIR 2001 Himachal Pradesh 18.