LAWS(P&H)-2014-5-836

JAWAHAR LAL Vs. BALOUR SINGH

Decided On May 05, 2014
JAWAHAR LAL Appellant
V/S
BALOUR SINGH Respondents

JUDGEMENT

(1.) BOTH the above mentioned regular second appeals i.e. RSA Nos. 518 of 2012 and 1178 of 2012 have been listed together for hearing as these arise out of a common judgment and decree of the Court of first instance as well as of lower appellate Court. As such, both the above mentioned second appeals are being disposed of by a common judgment. RSA No. 518 of 2012 has been preferred by Jawahar Lal plaintiff against the judgment and decree dated 18.10.2011 passed by learned Additional District Judge, Sri Muktsar Sahib whereby appeal preferred by Balour Singh defendant has been partly allowed and judgment and decree dated 13.10.2010 passed by learned Additional Civil Judge (Senior Division), Gidderbaha has been modified. R.S.A. No. 1178 of 2012 has been preferred by Balour Singh defendant against the judgment and decree dated 13.10.2010 passed by learned Additional Civil Judge (Senior Division), Gidderbaha whereby suit filed by the plaintiff -Jawahar Lal for recovery has been decreed, as well as, against the judgment and decree dated 18.10.2011 passed by learned Additional District Judge, Sri Muktsar Sahib whereby appeal preferred by Balour Singh - defendant has been only partly allowed and judgment and decree of the Court of first instance has been modified. For convenience sake, hereinafter parties will be referred to as they are arrayed in the Court of first instance.

(2.) THE detailed facts are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, brief facts relevant for disposal of this second appeal are to the effect that plaintiff filed a suit for recovery of Rs. 4,44,000/ - (Rs. 1,50,000/ - as principal amount and Rs. 2,94,000/ - as interest at the rate of 2% per month). It has been averred in the plaint that defendant being owner of the land measuring 28 kanals, fully detailed in the headnote of the plaint, agreed to mortgage his land with the plaintiff for a consideration of Rs. 1,50,000/ - on 07.02.1995. Mortgage deed was executed on the same day and it was got scribed from a regular deed writer and after scribing the same, it was read over and explained to the defendant in the presence of the marginal witnesses, who thumb marked the same. Thereafter, the defendant received a sum of Rs. 50,000/ - from the plaintiff as earnest money. The defendant agreed to get the mortgage deed registered in favour of the plaintiff on or before 08.02.1995 and it was presented before the Joint Sub Registrar, Lambi on 08.02.1995 where Joint Sub Registrar again read over and explained the same to the defendant in the presence of the marginal witnesses, who thumb marked the same, after admitting the same to be correct and receiving balance amount of Rs. 1,00,000/ - from the plaintiff, mortgage deed was registered. As per the terms and conditions, the defendant would have to pay interest at the rate of 2% per month on principal mortgaged amount i.e. Rs. 1,50,000/ - after the lapse of every six months i.e. on or before 30th June and on or before 31st December of every year. It was also agreed between the parties that the plaintiff will have right to recover the same through Court. It has been further alleged that defendant had paid 1st and 2nd installments of interest on 30.06.1995 and 31.12.1995 and after that he had failed to pay the interest or principal as agreed between the parties. It has been further alleged that defendant had violated their terms and conditions of the mortgage deed and plaintiff is entitled to recover Rs. 4,44,000/ - (Rs. 1,50,000/ - as principal amount and Rs. 2,94,000/ - as interest at the rate of 2% per month). The plaintiff does not want to keep the land under mortgage and want to recover his amount along with interest. The defendant was requested many times to return the mortgaged amount. Thereafter, a registered notice dated 07.02.2004 was sent to the defendant, but all in vain.

(3.) UPON notice, defendant appeared and filed written statement taking various preliminary objections. On merits, it was averred that defendant used to sell his crop at the commission agency of the plaintiff i.e. M/s Radhey Krishan Jawahar Lal, Dabwali and their relations with each other were very cordial. The plaintiff was issuing the receipts for the crop sold by the defendant through his firm and with regard to settlement of accounts. It was further averred that in the year 1995, after Lohri festival, the plaintiff requested the defendant to save his income tax and to convert his black money into white and for this, he intends to show the land of the defendant mortgaged in his name and due to cordial relations, the defendant replied in affirmative. On 07.02.1995, the plaintiff took the defendant in car to the Patwari and after taking the record of the land of the defendant from the Patwari, he was taken to the office of Sub Registrar, Lambi. There the plaintiff and his brother handed over the record to the deed writer and as per the settlement between the parties, deed writer was told to scribe the mortgage deed of 20 kanals 2 marlas and another mortgage deed of 20 kanals in favour of the plaintiff. It has been further averred that deed writer obtained the thumb impressions of the defendant on some stamp papers and other documents pertaining to mortgage deed. The plaintiff and his brother told the defendant that they have to prepare mortgage deed without possession in order to maintain the record of their shop and in order to save the income tax. They also told the defendant that whenever the defendant would intend to sell his land, they will get the mortgage deed redeemed. The defendant being illiterate person believed the plaintiff and put his thumb impressions at many places, whereas, he never obtained any amount in the presence of the witnesses from the plaintiff nor the defendant ever agreed to return the amount along with interest. It has further been averred that the transaction of mortgage deed was merely the paper transaction. Rest of the pleas taken in the plaint were denied.