2010(2) LAW HERALD (P&H) 972
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
The Hon’ble Mr. Justice Alok Singh
RSA No.1776 of 1982
Balbir Singh & Ors.
v.
Rajinder Parshad & Ors.
{Decided on 23/02/2010}
For the Appellants: Mr. J. K. Sibal, Sr. Advocate with Mr. Sapan Dhir, Advocate.
For the Respondents: Mr. Ravish Bansal, Advocate for Mr. Ashok Singla, Advocate.
IMPORTANT POINT
Second Appeal--High Court while hearing the second appeal can go into the question of fact when material is already available on the record
(A) Transfer of Property Act, 1882, S.58 & 60--Evidence Act, 1872, S.91 & 92--Redemption of Mortgages Act, 1913--Reliance of evidence to contradict contents of registered mortgage deed--Suit for redemption of mortgage--Father of defendant no. 3, alleged tenant, was one of the party to the mortgage deed--Neither mortgagor i.e. defendants No.7 to 11, from whom defendant No.3 alleges to have taken property on lease, nor defendant No.2, who is father of the defendant No.3, had come in the witness box, to explain that in fact defendant No.3 was tenant in actual physical possession prior to the execution of the mortgage--Any evidence led by defendant No.3, is not admissible in view of Sections 91 and 92 of the Evidence Act to disprove the contents of the document. (Para 15)
(B) Evidence Act, 1872, S.91 & 92--Reliance of evidence to contradict contents of registered mortgage deed--Oral evidence sometime is permissible to explain the contents, terms and conditions of the deed when language is ambiguous and needs explanation--However, if language is not ambiguous, vague and need no explanation and both the parties to the documents do not challenge it, then no evidence is permissible to prove otherwise. (Para 15)
(C) Transfer of Property Act, 1882, S.58 & 60--Evidence Act, 1872, S.91 & 92--Redemption of Mortgages Act, 1913--Suit for redemption of mortgage--Neither defendant nos.7 to 11, original mortgagors, nor defendant Nos.1 and 2, original mortgagees, came into the witness box to state that defendant No.3 son of defendant No.2 was inducted as tenant and was in actual physical possession over the property in dispute, even prior to the date of mortgage--Merely because defendant Nos.7 to 11 who after selling the property to the plaintiffs had no more interest in the property, support the claim of defendant No.3 in the written statement does not amount to legal proof of the factum of tenancy without coming into the witness box. (Para 17)
(D) Civil Procedure Code, 1908, S.100 & 103--Second Appeal--Power of High Court to determine issue of fact--High Court while hearing the second appeal can go into the question of fact when material is already available on the record.
(E) Transfer of Property Act, 1882, S.58 & 60--Evidence Act, 1872, S.91 & 92--Redemption of Mortgages Act, 1913--Suit for redemption of mortgage--Neither mortgagor, alleged landlord, defendant Nos.7 to 11, nor mortgagee, father of the defendant No.3, entered into the witness box to support the claim of the defendant No.3--Hence, finding recorded by the learned first Appellate Court is based on no evidence--Alleged rent receipt filed by the defendant No.3, allegedly issued by the mortgagors i.e. defendants No.7 to 11, is not proved--Held that first Appellate Court was wrong in holding that defendant No.3 was inducted as tenant by the defendants No.7 to 11, even prior to the mortgage--Even otherwise, first Appellate Court should have not disturbed the finding of fact recorded by the learned trial Court, even if, two views were possible--This is also one of the jurisdictional error committed by the first Appellate Court which can be corrected by High Court while exercising its jurisdiction under Section 100 read with Section 103 C.P.C. (Para 20 & 21)
