SANTOSH RANI Vs. MUKHTIAR SINGH

JUDGEMENT

(1.) The present appeal has been preferred by the defendant-appellants aggrieved by the judgment and decree dtd. 6/5/2019 passed by the First Appellate Court reversing the judgment and decree dtd. 9/12/2016 passed by the Trial Court dismissing the suit filed by the plaintiff-respondent.

(2.) Brief facts relevant to the present lis are that the plaintiff-respondent herein filed a suit for possession by way of redemption for a shop measuring 1 marla situated within the limits of Nagar Council, Bagha Purana, District Moga. It was averred in the plaint that the original owner of the suit property was one Balbir Singh son of Kapoor Singh, resident of Mudki Road, Bagha Purana, District Moga. Balbir Singh mortgaged the said property for an amount of Rs.30,000.00 to one Karanjit Singh son of Hans Raj, predecessorin-interest of the defendant-appellants herein, vide a registered mortgage deed No.7617 dtd. 9/1/1996. Karanjit Singh was put in possession of the suit property as a mortgagee. Balbir Singh filed a suit being Civil Suit No.6 of 5/1/2006/20/1/2006 titled Balbir Singh Vs. Karanjit Singh for actual possession by way of redemption but the said suit was withdrawn by the legal heirs on 21/7/2012. On 21/4/2010 the property in dispute was sold to the plaintiff-respondent for a consideration of Rs.3,40,000.00 vide a registered sale deed dtd. 21/4/2010. The plaintiff-respondent initially filed a suit titled Mukhtiar Singh Vs. Karanjit Singh which was later withdrawn on coming to know that the defendant - Karanjit Singh - had already expired. The defendant-appellants filed their written statement raising various preliminary objections on the grounds of maintainability and estoppel. It was averred in the written statement that Balbir Singh was the real brother of the plaintiff-respondent, and the plaintiff-respondent had no right to deny that Karanjit Singh was a tenant in the disputed property. It was further averred that the previous litigation had been concealed. On merits it was stated that Balbir Singh was the owner of the disputed shop and the alleged mortgage deed was executed as a security for the amount advanced to Balbir Singh. It was further the case that the property was let out to Karanjit Singh in June 1994 @ Rs.1,000.00 per month and in 1996, since Balbir Singh was in need of money, the property was mortgaged with Karanjit Singh for Rs.30,000.00. It was further the case set up that Balbir Singh never issued any receipt qua payment of rent. Replication was filed controverting the averments made in the written statement and reiterating those of the plaint. On the basis of the pleadings of the parties the following issues were framed :

(3.) The Trial Court vide judgment and decree dtd. 9/12/2016 dismissed the suit. Aggrieved by the same the plaintiff-respondent preferred an appeal which appeal was allowed by the First Appellate Court vide judgment and decree dtd. 6/5/2019. Hence, the present regular second appeal by the defendant-appellants.