JEET SINGH Vs. SURAJ KANWAR AND OTHERS

JUDGEMENT

(1.) Present appeal, at the hands of defendant, is directed against the judgment of reversal, whereby the learned Additional District Judge, accepted the first appeal of the plaintiff and set aside the judgment of learned trial Court, in a suit for recovery. Brief facts of the case, as noticed by the learned first appellate Court in paras 2 and 3 of the impugned judgment, are that Shri Mahla Singh son of Smt. Dhan Kaur, father of the defendants, was the owner of the land measuring 15 kanals 2 marlas (which was fully detailed in the para No.1 of the plaint) and plaintiff purchased the said land from him during his life time for a valuable consideration of Rs.3,21,000/-and he got executed and registered the sale deed qua the above-said land bearing Wasika No.1088 on 3.6.2003 in favour of the plaintiff in the presence of attesting witnesses. It was averred that Shri Mahla Singh sold the suit property to the plaintiff which was free from encumbrances and a recital to this effect was duly mentioned in the sale deed. However, as the property stood mortgaged with the State Bank of India, Branch Fazilka on the day of execution and registration of the sale deed, Shri Mahla Singh had agreed to get the property released from mortgage within a period of one year from the date of execution and registration of the sale deed and an affidavit to this effect was executed and got attested from Notary Public Fazilka. It was further agreed by Mahla Singh that if he (i.e. Mahla Singh) failed to repay the outstanding mortgaged money within the stipulated period of one year, in that event, vendee would be entitled to recover the said amount from Mahla Singh and for the said purpose the other estate of Sh. Mahla Singh would be liable. It was pertinent to mention here that the loan in question i.e. Rs.1 lac was taken by Mahla Singh and his son Shri Jeet Singh defendant No.4 from State Bank of India in April 2001 and land measuring 17 kanals including land mentioned in para No.1 was mortgaged by Sh. Mahla Singh. It was further averred that Shri Mahla Singh had died on February 2006, however, during his life time the plaintiff through her husband approached Shri Mahla Singh from time to time for clearance of the loan so that the mutation might be attested and sanctioned in favour of the plaintiff qua the suit property but he (Mahla Singh) postponed the matter on one pretext or the other from time to time and unfortunately, he died in February 2006 intestate leaving behind defendants as his class I legal representatives, who have inherited his movable and immovable property. It was further averred that Sh. Mahla Singh had sold the property unencumbered which find mentioned in the sale deed executed by him bearing Wasika No.1088 dated 3.6.2003 so, he was bound to pay off all encumbrance which include the outstanding loan payable to State Bank of India, Fazilka. The State Bank of India, Fazilka had filed a suit for recovery of Rs.1,61,119/-on account of principal amount besides interest and other incidental charges calculated upto 11.8.2005 against Sh. Mahla Singh and Jeet Singh but during the pendency of the said suit Sh.Mahla Singh died and defendants were brought on record as his legal representatives. It was further averred that plaintiff got entered mutation qua the suit land in her name but the same was not sanctioned for the reason of the outstanding loan on the said loan and for the said reason, the plaintiff was compelled by the circumstances, to pay off the mortgage money so as to get the property released from the mortgage. The plaintiff paid an amount of Rs.1,88,531/- through cheque Bearing No.926716 dated 7.11.2006 drawn on State Bank of India, Fazilka in the loan account of Shri Mahla Singh and Jeet Singh to clear the loan account and to get the property released from the mortgage and thereafter the mutation in favour of the plaintiff was got attested and sanctioned. It was further averred that Sh. Mahla Singh and Jeet Singh were legally bound to pay the said debt amount and the plaintiff had on interest in the payment of the said money for getting the property unencumbered so the mutation be got sanctioned in her favour and for the said reason the plaintiff paid the suit amount of Rs.1,88,531/- in the loan account of Shri Mahla Singh and Jeet Singh. The defendants were jointly and severally liable for the payment of the suit amount of Rs.1,88,531/- alongwith interest at the rate of 2% per month. The plaintiff through her attorney requested the defendants many a times to pay the said amount, but to no effect. Hence, the suit was filed. Upon notice, all the defendants appeared and filed joint written statement raising preliminary objections, inter alia, that the suit of the plaintiff was not maintainable in its form as the plaintiff filed the suit on the basis of photocopy of affidavit dated 3.6.2003 in which her name was not mentioned, the suit was not filed within a period of limitation, the plaintiff had no cause of action or locus standi to file the suit, the plaintiff was estopped by her own act and conduct from filing the present suit, the plaintiff did not affix the proper court fee on the plaint, the attorney of the plaintiff namely Karan Singh had no right to file the suit on behalf of the plaintiff and against the defendants, the plaintiff filed the suit on the basis of false facts to grab the land of defendants measuring 15 kanals 2 marlas. The real facts were that the father of the defendants namely Shri Mahla Singh was the exclusive owner in possession of the land measuring 15 kanals 2 marlas and after his death, the defendants inherited the said property and became owners of the said land vide mutation No.1926 but the plaintiff in connivance with higher officers got entered the mutation in her name illegally and she never remained in possession over the suit land. It was further submitted that the defendants filed an appeal before the court of Sub Divisional Magistrate cum Collector Fazilka regarding the wrong mutation, which was pending for 8.3.2007 and they also filed an application for correction of the khasra girdawari before the court of AC IInd Fazilka. On merits, the averments as stated in the preliminary objections were again reiterated and a prayer for the dismissal of the suit has been made.

(2.) On completion of pleadings of the parties, following issues were framed by the learned trial Court:-

(3.) To substantiate their respective stands taken, both the parties led their documentary as well as oral evidence. After hearing the learned counsel for the parties and going through the evidence brought on record, the learned trial Court came to the conclusion that plaintiff has failed to prove her case. Accordingly, suit for recovery was dismissed vide judgment and decree dated 11.8.2011. Feeling aggrieved, plaintiff filed her first appeal, which came to be allowed by the learned Additional District Judge vide impugned judgment and decree dated 14.1.2014. Hence this second appeal at the hands of defendant.