LABH SINGH Vs. SURJIT KAUR AND ORS.

JUDGEMENT

(1.) The appellant-plaintiff is in Regular Second Appeal against the concurrent finding of fact whereby the suit for declaration and permanent injunction and subsequently amended for possession has been dismissed by both the courts below.

(2.) Learned counsel appearing on behalf of the appellant-plaintiff submits that Surjit Kaur has mortgaged the suit property to the brother of the appellant-plaintiff. However, subsequent to the registered mortgage deed, entered into an agreement to sell dated 13.6.1976 and in part performance of the same handed over the possession. Before she could initiate the proceedings for redemption, a civil suit dated 29.4.1991 Ex.P-8 was filed for challenging the agreement to sell. Though, in the written statement Ex.P-9 it was stated that it was only an agreement to sell and not sale deed. The said suit was dismissed vide Ex.P-6 dated 23.12.1993. Thereafter, the suit for redemption before the concerned authority was filed against the mortgagees. The said suit had attained finality in execution of the said proceedings. The order dated 19.7.2005 Ex.P-4 was passed and ultimately the appellantplaintiff was dispossessed on 10.10.2006, for which fresh cause of action accrued. The amendment of the plaint was sought and additional issue in this regard was framed.

(3.) The trial court has not referred to issue No. 10-A. However, the lower appellate court, though referred to the aforementioned issue but has not rendered any finding being last court of fact and law. However, submitted that the trial court closed the evidence of the plaintiff by order. The same was challenged before the trial court and was also challenged in appeal by taking aid of Order 43 Rule 1-A CPC. However, there is no adjudication of the same, therefore the impugned judgments and decrees suffer from illegality and perversity, therefore substantial question of law arise for determination by this Court.