RSA-72-2016 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 112 RSA-72-2016 (O&M) Reserved on : 27.04.2026 Pronounced on : 15.07.2026 Uploaded on : 15.07.2026 Whether only operative part of the judgment is pronounced? No Whether full judgment is pronounced? Yes Siri Pal ...... Appellant versus Gurmej Singh thr LRs Sinder Kaur and others ...... Respondents **** CORAM : HON'BLE MR. JUSTICE PANKAJ JAIN Present: Mr. Yagsimant Attri, Advocate for the appellant. Mr. Sanjiv Kumar Aggarwal, Advocate Mr. Nissim Aggarwal, Advocate and Mr. AVS Parmar, Advocate for the respondents. **** PANKAJ JAIN, J. 1. Defendant is in second appeal aggrieved of the concurrent findings recorded by the Courts below. 2. Plaintiffs filed suit for possession by way of redemption of mortgage. As per plaintiffs, they are owners of suit property situated within industrial area of Cheeka. The plaintiffs mortgaged the same with defendant for an amount of Rs.5000/- by way of registered mortgage deed dated 14.08.1988. On request, defendant failed to redeem the same and hand over possession to the plaintiffs. Plaintiffs, DINESH KUMAR 2026.07.15 17:11 I attest to the accuracy and integrity of this document RSA-72-2016 (O&M) accordingly instituted present suit on 16.09.2010 seeking possession of the property by way of redemption. 3. Defendant filed written statement denying that the property was mortgaged by plaintiffs. As per the defendant, the property was rented out to him by plaintiffs on a monthly rent of Rs.4000/- per annum. From time to time, the rent was increased. In the year 2008- 2009, the rent was settled at Rs.18000/- per annum. Defendant regularly paid rent to the plaintiff. However, no receipt was ever issued. Defendant was duly entering the rent amount in account books maintained by firm in regular course of business. Plaintiffs in order to avoid the provisions of Haryana Urban (Control of Rent and Eviction) Act, 1973 created a bogus mortgage deed which is not binding upon the rights of the defendant. 4. Suit filed by the plaintiffs was put to trial by the Court of First Instance framing following issues:- “1. Whether the plaintiff is entitled to decree of redemption of mortager and possession as prayed for? OPP. 2. Whether the suit of the plaintiffs is not maintainable? OPD. 3. Whether the civil court has no jurisdiction? OPD. 4. Relief.” 5. Mortgage deed has come on record as Ex.P2. Deed Writer Satish Kumar appeared as PW3. Atma Ram attesting witness appeared as PW5. Defendant in order to prove payment of rent, tendered into evidence bahi entries Ex.D1 to Ex.D90, Ex.D112 to Ex.116 and Ex.D119 to Ex.D122. 6. While deciding issue No.1, the Court of First Instance found that the plaintiffs successfully proved execution of the mortgage DINESH KUMAR 2026.07.15 17:11 I attest to the accuracy and integrity of this document RSA-72-2016 (O&M) deed. Defendant though produced bahi entries showing payment of rent, but the same are neither singed by the plaintiff nor by the defendant. Defendant admits that he came in possession on the strength of mortgage deed. Thus, plaintiffs are entitled to decree of possession by way of redemption. 7. Findings recorded by the Court of First Instance stands affirmed by the Lower Appellate Court in appeal preferred by the defendant. 8. Counsel for the appellant submits that the original mortgage deed was neither produced nor any permission was sought to prove the same by way of secondary evidence. The property is an industrial plot and was worth more than Rs. 20 lakh in the year 1988. Hence, it is unbelievable that such property shall be mortgaged for a meagre sum of Rs.5000/-. Courts below erred in ignoring the fact that the mortgage deed was merely a security transaction and the defendant- appellant was paying rent @ Rs.4000/- per annum to the plaintiffs. He submits that the mortgage deed itself carries a covenant that the rate of interest on the mortgage amount and rent are equal, thus the status of defendant-appellant as a tenant has been accepted by the plaintiffs. The Courts below, however misread the vital part of mortgage deed which has led to perverse findings. 9. Per contra, counsel for the respondents submits that there is concurrent finding of fact recorded by both the Courts below. There is no question of law involved, thus the present appeal deserves to be dismissed. Execution of document is not disputed by the defendant. DINESH KUMAR 2026.07.15 17:11 I attest to the accuracy and integrity of this document RSA-72-2016 (O&M) Original document is in possession of the defendant. Certified copy of the registered document was placed on record. Witnesses were examined to prove the same. Thus, there was no requirement or filing formal application for leading secondary evidence. He further submits that the payment of rent could not be proved by the defendant. He further submits that the defendant having failed to prove his status as a tenant, the Courts below have rightly decreed the suit filed by the plaintiff. 10. I have heard counsel for the parties and have carefully gone through the records of the case. 11. The fact of execution of mortgage deed at the time of handing over of possession by the plaintiffs to the defendant, is not in dispute. Certified copy of the registered document is on record as Ex.P2. Scribe and attesting witness have been examined. In view thereof, this Court finds that defendant cannot deny execution of mortgage deed Ex.P2. Rather, the entire case pleaded by the defendant is that the mortgage deed was executed, but the same was a sham document to defeat the rights of the defendant who was in fact inducted as a tenant. 12. Defendant in order to prove his tenancy, has relied upon bahi entries Ex.D1 to Ex.D90, Ex.D112 to Ex.116 and Ex.D119 to Ex.D122. Admittedly, these bahi entries were neither signed by plaintiffs nor by the defendant. Defendant while appearing as DW2 admitted that the bahi entries were not prepared by him, but by his munim, namely Om Parkash. Defendant examined DW4 Krishan Chand DINESH KUMAR 2026.07.15 17:11 I attest to the accuracy and integrity of this document RSA-72-2016 (O&M) working as munim on his shop. He denied knowledge of bahi entries Ex.D1 to Ex.D90 and Ex.D112 to Ex.D116. The Courts below further found that the suit was instituted on 16.09.2010, entry of payment of rent for the year 2011 falsifies the entire documentary evidence brought on record by the defendant. 13. Trite it is that a mortgagee cannot claim right of tenancy, unless the same is conferred by way of a stipulation made in the mortgage deed. Counsel for the appellant relies upon covenant contained in Ex.P2-the mortgage deed, wherein the parties agreed that the interest on the mortgage amount shall be equal to rent of two years and after expiry of two years, the mortgager shall have a right to redeem the land. The covenant contained in the mortgage deed relied upon by the counsel for the appellant does not confer right of tenancy upon the mortgagee, but the same is relatable to the term as provided under Section 62 of the Transfer of Property Act, 1882 which deals with right of usufructuary mortgagor to recover possession. 14. In view of above, this Court finds that the Courts below have rightly decreed the suit filed by the plaintiffs holding that the execution of mortgage deed Ex.P2 stands proved. Defendant failed to prove that the same is a sham transaction to defeat his rights as a tenant, as he failed to prove payment of rent. In the absence of there being any right conferred upon the mortgagee to be treated as tenant, the plea raised by defendant has been rightly rejected by the Courts below. 15. Finding no merits in the present appeal, the same is ordered to be dismissed. DINESH KUMAR 2026.07.15 17:11 I attest to the accuracy and integrity of this document RSA-72-2016 (O&M) 16. Since the main case has been decided, pending miscellaneous application, if any, shall also stands disposed off. (PANKAJ JAIN) JUDGE 15.07.2026 Dinesh Whether speaking/reasoned : Yes Whether Reportable : No DINESH KUMAR 2026.07.15 17:11 I attest to the accuracy and integrity of this document