RSA-1819- IN THE HIG 119 Balbir Singh Mahabir Par CORAM: H Present: - NIDHI GUP 1. the concurre vide judgme Additional by the learne dated 15.12. way of Spec 2. before the le defendant’, 3. way of spec 164-A min r as per Agree and register consideration -2023 (O&M) -1- HIGH COURT OF PUNJAB AND HA Singh Versus ir Parshad M: HON'BLE MS. JUSTICE NIDH Mr. SK Sirsa, Advocate for the I GUPTA, J. The defendant is in second app ncurrent findings returned by the lea judgment and decree dated 15.09.2 onal Civil Judge (Senior Division), learned Additional District Judge, His 15.12.2022, the suit of the plaintiff/r f Specific Performance has been decre The parties shall hereinafter be the learned trial Court i.e. the appella ant’, whereas the respondent as ‘the p The plaintiff had filed the prese f specific performance in respect of h min reassuming 111 sq. yards situate Agreement/Mortgage Deed No. 1070 egistered by defendant in favour o eration of ₹36,45,000/- (₹25,00,000 D HARYANA AT CHANDIGARH RSA-1819-2023 (O&M) Date of Decision: 22.01.2025 .…Appellant ....Respondent NIDHI GUPTA or the appellant. nd appeal before this Court against the learned Courts below whereby 5.09.2018 passed by the learned ion), Hisar; duly affirmed in appeal Hisar, vide judgment and decree intiff/respondent for Possession by decreed. fter be referred to as per their status pellant is being referred to as ‘the ‘the plaintiff’. present suit, seeking possession by ct of house constructed on plot No. situated at Kunj Lal Garden, Hisar, . 10704 dated 23.10.2012 executed vour of plaintiff for a total sale 00,000/- as principal amount and reby rned peal cree by atus the n by No. isar, uted sale and RISHU KATARIA 2025.01.27 17:56 I attest to the accuracy and authenticity of this order/judgment. RSA-1819- ₹11,45,000/ and register Deed/Agreem restraining th charge over 4. defendant w money. The borrowed m ₹25,00,000/ had also exe of plaintiff r without pos conditions o -2023 (O&M) -2- ,000/- as interest); AND for direction gister the sale deed as per term and Agreement with consequential relie ning the defendant from alienating, tra over the suit land in any manner. Brief facts of the case as set ant was in need of money, so he requ . The defendant offered to mortgage h ed money. The plaintiff accepted ,000/- on 23.10.2012 in the presence so executed mortgage deed No. 1070 intiff regarding the suit property. The t possession for consideration of ions of mortgage without possession a “a) The last date of the rede was fixed as 30.04.2015. b) The defendant agreed to alongwith interest @ Rs.1 c) He undertook to pay the plaintiff against proper d) It was agreed that if the amount alongwith interes to recover the said amou the process of the court the alternative he would transferred in his name against the principle and e) The defendant undertook house in question. f) The other conditions mortgage deed.” irection to the defendant to execute rm and condition of the Mortgage l relief of permanent injunction ing, transferring creating third party set out in the plaint are that the e requested the plaintiff to advance gage his house with plaintiff against pted his offer and advanced him esence of witnesses. The defendant 10704 dated 23.10.2012 in favour y. The suit property was mortgaged of ₹25,00,000/-. The terms and sion are as follows:- redemption of the mortgage deed 015. ed to repay the mortgage money Rs.1/- per hundred. y the interest every month to the er receipt. f the defendant failed to repay the terest then the plaintiff has a right mount alongwith interest through urt at the cost of defendant or in ould be entitled to get the house ame through process of the court and interest amount. took that he shall not alienate the ns as mentioned in the said cute age tion arty the ance inst him dant vour ged and ed ey he he ht gh in se rt he id RISHU KATARIA 2025.01.27 17:56 I attest to the accuracy and authenticity of this order/judgment. RSA-1819- 5. paid any inte from the plai the time of principal am the defendan Deed, the ₹36,45,000/ averred that of Agreeme execution an the defendan 6. vehemently the avermen objection tha to the defend drinking hab Mortgage De 7. plaintiff. 8. were framed -2023 (O&M) -3- However, the defendant neither ny interest within the stipulated period he plaintiff violating the terms and con e of filing of suit, an amount of pal amount and ₹11,45,000/- as intere fendant. Thus, as per the terms and the plaintiff is entitled to get th ,000/- in his favour regarding the hou d that the plaintiff was always ready a reement/Mortgage Deed and is read tion and registration of sale deed in h fendant had refused to execute the sale Upon notice, defendant appeare ently contesting the suit on numerou erments made in the plaint (Annexur ion that the amount of ₹25,00,000/- wa defendant; and that the plaintiff had ng habit of the defendant and got age Deed No. 10704 dated 23.10.2012 No replication to the written On the basis of the pleadings o ramed by the learned trial Court vide o “1. Whether the plaintiff possession of house in q body of the plaint alon either paid the principal amount nor period in-spite of repeated demands nd conditions of Mortgage Deed. At t of ₹36,45,000/- (₹25,00,000/- as interest thereupon) was due against s and conditions of the Mortgage get the sale deed registered for he house in question. It was further eady and willing to perform his part s ready to bear the expenses and d in his favour. On the other hand, he sale deed. ppeared and filed written statement merous grounds/objections denying nnexure A-1), inter alia, taking the was never given by the plaintiff f had taken undue advantage of the d got executed and registered the 0.2012; and taking various defence. ritten statement was filed by the ings of the parties, following issues vide order dated 31.05.2017: - tiff is entitled for decree of in question as prayed for in the alongwith consequential relief of t nor ands . At as inst age for ther part and and, ent ying the ntiff the the sues of he of RISHU KATARIA 2025.01.27 17:56 I attest to the accuracy and authenticity of this order/judgment. RSA-1819- 9. the parties, t costs vide j plaintiff is performance No. 10704 d execute and of the plaint hand over th 10. way of filin decree dated -2023 (O&M) -4- permanent injunction on the plaint? OPP. 2. Whether plaintiff has n action to file the present 3. Whether present suit is n form? OPD. 4. Whether plaintiff is est conduct from filing the pr 5. Whether plaintiff has not hands? OPD. 6. Whether suit is not prope court fees and jurisdictio 7. Whether suit is bad for m necessary parties? OPD. 8. Whether suit is time barr 9. Relief.” On the basis of oral and docum rties, the learned trial Court decreed t vide judgment and decree dated 15 ff is entitled to decree for posse mance in respect of house in dispute b 704 dated 23.10.2023 Ex. PW-5/B. Th te and get registered the sale deed of th plaintiff within two months from the ver the possession of the house in disp The defendant had approached f filing Civil Appeal No.516/2018 dated 15.09.2018, which too was n on the grounds as mentioned in s no locus standi and cause of sent suit? OPD. is not maintainable in the present estopped by her own act and he present suit? OPD. s not come to the court with clean roperly valued for the purpose of iction? OPD. for mis-joinder and non-joinder of PD. barred? OPD. documentary evidence adduced by creed the suit of the plaintiff with ted 15.09.2018 holding that the possession by way of specific pute by the dint of Mortgage Deed 5/B. The defendant was directed to d of the house in dispute in favour om the date of judgment and will in dispute to the plaintiff. ached the Ist Appellate Court by /2018, against the judgment and was dismissed by the learned in of nt nd an of of RISHU KATARIA 2025.01.27 17:56 I attest to the accuracy and authenticity of this order/judgment. RSA-1819- Additional 15.12.2022 11. judgments o been passed the learned that the defe had also ne plaintiff. Th ₹25,00,000/ execution of which in fac 12. grave error b who prove 23.10.2012 signatures. defendant is the plaintiff attesting wi Kumar, who plaintiff’s w taken wheth appellant. agreement/d -2023 (O&M) -5- onal District Judge, Hisar, vide ju 2022. Hence, the present second appea Learned counsel for the appe ents of both the Courts below by sub assed without appreciating the facts a arned Courts below had totally overl e defendant had never borrowed any m lso never offered to mortgage the h ff. The plaintiff had never advanc ,000/- to the defendant and therefore tion of Agreement/Mortgage Deed N in fact is a result of fraud and misrepr It is contended that both the Co error by ignoring the testimony of PW proved the Agreement/Mortgage 2012Ex. PW-5/B upon which the However, in this regard it h ant is a drug addicted person, so, the aintiff under the influence of the alc ng witnesses of the said deed Ex. r, who is the own son of the plaintiff ff’s witness. Even opinion of handw whether the attesting signature actual It is submitted that the defend ent/deed knowing it to be a mortga ide judgment and decree dated appeal. appellant-defendant assails the by submitting that the same have facts and evidence on record. Both overlooked and ignored the fact any money from the plaintiff and the house in question with the dvanced the alleged amount of erefore, there was no question of eed No. 10704 dated 23.10.2012, isrepresentation. the Courts below have committed of PW-5 Ajay Gupta, Deed Writer gage Deed No. 10704 dated defendant had admitted his it has been ignored that the so, these signatures were taken by he alcohol. Moreover, one of the d Ex. PW-5/B, namely, Naveen laintiff, has not been examined as handwriting expert has not been actually belong to the son of the defendant had never signed any mortgage deed and his signatures RISHU KATARIA 2025.01.27 17:56 I attest to the accuracy and authenticity of this order/judgment. RSA-1819- were obtaine of liquor. property. 13. judgments a testimony of no payment plaintiff eve Rs.25,00,000 affidavit Ex wrongly reli prayed that t 14. 15. the case file 16. matter perta Perusal of th hearing for 14.02.2024, 23.10.2024 18.07.2024 a un-represent adjourned at -2023 (O&M) -6- ined by the plaintiff by playing fr The defendant had never inten Further, it is submitted that ents and decrees, both the Courts be ony of PW-4 Sh. Parveen Chaudhary yment/transaction took place in his ff even failed to prove his source ,00,000/- to the defendant. Even the vit Ex. PW-7/A was totally beyond ly relied upon by the learned Cour that the concurring judgments of the c No other argument is raised on I have heard learned counsel fo se file in great detail. At the very outset, it is pertinen pertains to the 2023 and notice is ye l of the order-sheets shows that earl g for 09 times i.e. on 03.07.2023 2024, 20.02.2024, 21.02.2024, 29 2024; out of which on 04 dates i. 2024 and 23.10.2024 (last date of hear resented; whereas on the remainin ned at the request of learned counsel fo ing fraud and under the influence r intended to mortgage the suit that in passing the impugned urts below have also ignored the y, Advocate, who deposed that in his presence. Moreover, the ource of funds and payment of n the evidence of plaintiff in his eyond the pleadings, which was Courts below. it is accordingly of the courts below be set aside. ed on behalf of the appellant. nsel for the appellant and perused ertinent to mention herein that the e is yet to be issued in the same. arlier this case was listed for 7.2023, 22.08.2023, 19.12.2023, 4, 29.02.2024, 18.07.2024 and ates i.e. 03.07.2023, 19.12.2023, of hearing), the appellant had gone maining 05 dates the case was nsel for the appellant. RISHU KATARIA 2025.01.27 17:56 I attest to the accuracy and authenticity of this order/judgment. RSA-1819- 17. Agreement/M submitting th upon the sai defendant; th means and, said Deed. It borrow any a 18. be rejecting reveals that examining P scribed the s defendant ha had further d him and the contents as the deed in t his register a 19. Advocate Agreement/M who had ful said Mortgag -2023 (O&M) -7- Learned counsel for the defend ment/Mortgage Deed No. 10704 dated tting that the plaintiff had obtained the the said Deed by taking advantage o ant; that the said Deed has been proc and, therefore, no right accrues to th eed. It has further been submitted by t any amount of ₹25,00,000/- from the However, the said arguments o ecting in view of the fact that perusa s that the plaintiff had proved the Mor ning PW-5 Ajay Gupta, Deed-Writer d the said Mortgage Deed on the instr ant had admitted receiving of ₹25,00 rther deposed that the Deed was read nd the parties put their signatures on ts as correct. The witnesses had also ed in the presence of PW5; then he m ister and copy of which was tendered The plaintiff had also examined who is one of the attestin ment/Mortgage Deed No. 10704 date ad fully supported the case of the pl ortgage Deed was executed in his pres ndant has laid challenge to the dated 23.10.2012 Ex. PW-5/B by ed the signatures of the defendant tage of the inebriated state of the n procured by false and fraudulent s to the plaintiff in respect of the ed by the defendant that he did not om the plaintiff. ents of the defendant are liable to perusal of the record of the case e Mortgage Deed Ex. PW-5/B by Writer, who deposed that he had instructions of defendant and the 25,00,000/- from the plaintiff. He s read over to both the parties by es on the same after admitting its d also affixed their signatures on n he made an entry of the same in dered in evidence as Ex. PW-5/A. amined PW-4 Parveen Chaudhary, ttesting witnesses of the said 4 dated 23.10.2012 Ex. PW-5/B, the plaintiff and deposed that the is presence. RISHU KATARIA 2025.01.27 17:56 I attest to the accuracy and authenticity of this order/judgment. RSA-1819- 20. Deed Ex. PW truth is atta plaintiff had Hisar, who h him by the d ₹25,00,000/ Mortgage D witnesses ha had further d registration bears the p signatures o law is attach required to aforesaid De plaintiff by executed the except the se been produc 21 in para Nos. reads as follo -2023 (O&M) -8- Moreover, it has also to be born Ex. PW-5/B is a registered document is attached to the same. Further, to ff had examined PW-9 Atma Ram, T who had deposed that the Mortgage the defendant, and he admitted the ,000/- from the plaintiff. After adm age Deed Ex. PW-5/B as correct, bo ses have put their signatures in his p rther deposed that the defendant was ation of Mortgage Deed. The Mortga the photographs and signatures of ures of the attesting witnesses. As st attached with a registered document, ed to lead cogent and convincing e aid Deed was a result of fraud and mi ff by taking the benefit of drunkard ted the said Mortgage Deed Ex. PW t the self-serving statement of the defen roduced by him. The relevant findings of the le a Nos. 24, 25 and 29 of the judgment a as follows:- 24. Otherwise also, the pla execution of the mortgage d payment of Rs.25 Lakhs to defen Praveen Chaudhary, Advocate, e borne in mind that the Mortgage ument. Therefore, presumption of er, to prove its authenticity, the , Tehsildar-cum-Sub Registrar, rtgage Deed was presented before d the borrowing of an amount of admitting the contents of the ect, both the parties and attesting n his presence. PW-9 Atma Ram, t was in his senses at the time of Mortgage Deed Ex. PW-5/B even es of the parties as well as the As stated above, presumption in ment, therefore, the defendant was cing evidence to prove that the nd misrepresentation; and that the nkard condition of defendant got . PW-5/B in his favour. However, e defendant, no other evidence has the learned First Appellate Court ment and decree dated 15.12.2022, plaintiff successfully proved the ge deed by the defendant and defendant. He examined PW4 Shri cate, who was one of the attesting he nd ri ng RISHU KATARIA 2025.01.27 17:56 I attest to the accuracy and authenticity of this order/judgment. RSA-1819- -2023 (O&M) -9- witnesses of the mortgage dee that mortgage deed was drafted in his presence and both the signatures in his presence a document in the presence of t examined PW5 Ajay Gupta categorically deposed that the m him on the asking of defendan that Balbir had also admitted b Rs.25 lakhs from the plaintiff read over to both the parties an and the witnesses put their sign cross-examination also, he d signatures of defendant Balbir from him about receipt of mor which, Balbir Singh had admi amount. 25. It is further pertinent to examined PW8 Sultan son of G deposed that on 23.10.2012, t Rs.9 lakhs to the defendant in admitted that earlier, he had plaintiff. In his cross-examina counsel for the defendant, as counted the cash of Rs.9 lakhs recipient i.e. the defendant had Rs.9 lakhs. PW 9 Atma Ram, R as Tehsildar/Sub-Registrar o deposed that when the mortgag him for registration, he had ve parties and the parties had ad at residence. He also deposed t of the document, the executan and was in his senses. 26 to 28 xxx 29. Moreover, the defendant to prove that he ever returned plaintiff. He also did not addu paid any amount as interest conditions of the mortgage deed written statement, it was never deed. He categorically deposed afted by Ajay Gupta, Deed writer the witnesses had also put their e and he had also signed the f the parties. The plaintiff further upta, Deed writer, who also the mortgage deed was scribed by ndant Balbir. He further deposed ed before him that he has received ntiff Mahabir. The document was es and thereafter, both the parties signatures in his presence. In his he deposed that before taking lbir Singh, he had duly enquired mortgage money Rs.25 lakhs, to dmitted that he has received the t to mention that the plaintiff also of Gopal Ram, who categorically 2, the plaintiff had handed over t in his presence and he had also had taken Rs.16 lacs from the mination, on a query by learned , as to whether the witness had akhs, the witness deposed that the t had counted the cash amount of m, Retired D.R.O. who was posted r on 23.10.2012, categorically rtgage deed was presented before d verified the facts from both the d admitted the money transaction sed that at the time of registration utant Balbir was fully conscious xxx xxx dant did not adduce any evidence rned even a single penny to the adduce any evidence that he had rest in pursuance of terms and deed Ex.PW5/B. Moreover, in the ever the case of the defendant that ed ter eir he er lso by ed ed as ies his ng ed to he lso lly er lso he ed ad he of ed lly re he on on us ce he ad nd he at RISHU KATARIA 2025.01.27 17:56 I attest to the accuracy and authenticity of this order/judgment. RSA-1819- 22. the plaintiff huge loan of by the evide the bank acc PW-2 R.K. bank accoun which vario account of th the defendan 23. the defendan defendant w by paying th such plea ha -2023 (O&M) -10- he has been ready and willi redeemed by paying the rede grounds of appeal also, no suc defendant. No legal notice was or no suit/application was fi property redeemed. At all stage the case of the defendant that m never executed by him. Howeve defendant failed to prove hi representation and therefore, a the mortgage deed Ex.PW5/B, to seek relief of specific per seeking transfer of the suit pro delivery of possession judgments/authorities relied up defendant pertain to redemptio applicable in facts and circums The argument of the learned co aintiff did not prove on record that he oan of ₹25,00,000/- is also liable to b evidence of PW1 Kavita, Assistant nk account statement of the plaintiff E R.K. Sharma, Manager, SBI HAU, H ccount statement of the plaintiff and h various transactions were shown nt of the plaintiff and his wife, thus, fendant. It is also to be noted that in th fendant before the learned trial Court i ant was ever ready and willing to get ying the redemption money. Even in lea has been taken by the defendant. willing to get the suit property redemption money. Even in the such plea has been taken by the was issued by him to the plaintiff s filed by him to get the suit stages till this appeal, it has been hat mortgage deed Ex.PW5/B was wever, as already noted above, the e his pleas of fraud and mis- re, as per terms and conditions of 5/B, the plaintiff was duly entitled performance of the documents t property in his name as well as n in his favour. The d upon by learned counsel for the ption of mortgage, which are not umstances of the present case.” ned counsel for the defendant that hat he had the capacity to advance le to be rejected as, it was proven istant Manager, who had brought ntiff Ex. PW-1/A; and evidence of AU, Hisar, who had brought the and his wife Ex. PW-2/C, as per to have been made in the thus, falsifying the contentions of t in the written statement filed by Court it was never pleaded that the to get the suit property redeemed ven in the grounds of appeal, no ndant. No legal notice was issued rty he he tiff uit en as he of ed nts as he he ot RISHU KATARIA 2025.01.27 17:56 I attest to the accuracy and authenticity of this order/judgment. RSA-1819- by him to th suit property stage are bel 24. controvert th explanation 25. 26. 22.01.2025 rishu -2023 (O&M) -11- to the plaintiff or no suit/application roperty redeemed. As such, the said are belated and liable to be rejected. Learned counsel for the appell vert the above said evidence/finding ation for the same. In view of the above, present ap Pending application(s) if any als 2025 Whether speaking/reasoned Whether Reportable ication was filed by him to get the said plea of the defendant at this appellant is unable to dispute or findings or give any satisfactory sent appeal is dismissed. any also stand(s) disposed of. ( NIDHI GUPTA ) JUDGE Yes/No Yes/No RISHU KATARIA 2025.01.27 17:56 I attest to the accuracy and authenticity of this order/judgment.