w w w . L a w y e r S e r v i c e s . i n



Hari Chand v/s Raj Kumari D/O Shri Sunder Dass


Company & Directors' Information:- SHRI HARI CORPORATION LIMITED [Strike Off] CIN = U15422PN2012PLC142075

Company & Directors' Information:- M HARI DASS & CO PVT LTD [Active] CIN = U31300WB1980PTC032937

Company & Directors' Information:- HARI RAJ LIMITED [Dissolved] CIN = U99999MH1956PLC009718

    Appeal No. ---------

    Decided On, 06 August 1997

    At, High Court of Punjab and Haryana

    By, THE HONOURABLE MR. JUSTICE SAT PAL

    For the Appearing Parties: Ashish Kapur, K.L. Malhotra, S.C. Kapoor, V.K. Jain, Advocates.



Judgment Text

SAT PAL, J.


1. In this appeal, the appellant has challenged the judgment dated 1st October, 1993, passed by the learned Senior Sub-Judge, Gurgaon and the judgment dated 7th August, 1996, passed by the learned Additional District Judge, Gurgaon.


2. Briefly stated, the facts of the case are that respondent Smt. Raj Kumari is the L. R. of late Sunder Dass, who was the owner of House No. 751/16, situated at old Railway Road, Gurgaon said Sunder Dass mortgaged one room of the said house to appellant-defendant. Hari Chand, vide registered mortgaged deed dated 15th September, 1980, for a sum of Rs. 10,000/ -. As per terms mentioned in the mortgage deed, the vacant possession of the said room was also given to the appellant and he was authorised to use that room for income thereof. It is not disputed that the said room is situated in Gali behind the main road and the width of this gali is 4/5 feet. It has also been stated in the mortgage deed that the appellant who is having the shop , on the northern side could make an entry in the intervening walls of his adjoining shop.


3. Sunder Dass, owner of the premises in dispute, filed the suit for redemption of the room on payment of the mortgage debt of Rs. 10,000/ -. The appellant-defendant, in his written statement, admitted that the said Sunder Dass was the owner of the property in dispute but claimed himself to be the' tenant in possession of the room. He further pleaded that the mortgage deed dated 15th September, 1980 was a sham document and in fact, he had paid Rs. 10,000/- as pagri for taking this shop at the rate of Rs. 300/- per month. The learned trial Court vide judgment dated 1st October, 1993 held that the defendant-appellant executed the mortgage deed Exhibit P. 1 in favour of the plaintiff on 15th September, 1980 in respect of the property in dispute for a consideration of Rs. 10,000/- and decreed the suit of the plaintiff. Aggrieved by the judgment passed by the learned trial Court, the appellant-defendant filed appeal which was dismissed by the learned Additional District Judge, Gurgaon, on 7th August, 1996. Thus there are concurrent findings of fact given by the learned trial Courts below to the effect that the mortgage deed, Exhibit P. 1 was executed by the defendant-appellant on 15th September, 1980, for a consideration of Rs. 10,000/-and it was not a sham document.


4. Mr. Jain, learned Senior counsel appearing on behalf of the appellant, submitted that both the courts below failed to take into consideration the fact that the owner of the property in dispute, namely Sunder Dass was a rich man at the relevant time and there was no necessity for him to mortgage the room in question. He, further submitted that document Exhibit D. 3 showed that at the relevant time, his wife was owning property for which she was receiving a monthly rent of Rs. 505/ -. He further submitted that Exhibit D. 6 which is a copy of the Balance Sheet of Sunder Cycle Works, of which Sunder Dass was one of the partners, showed that during that year, the said firm was having Rs. 15,000/- in cash, relying on these facts, the learned counsel contended that the mortgage deed, Exhibit P. 1 was a sham document and in fact the room in question was given to the appellant-defendant on a monthly rent of Rs. 300/ -. In this connection, he also referred to document Exhibit P. 2 which is an extract from the assessment register of 1994-95, which showed that one room was mortgaged with the appellant Hari Chand and a sum of Rs.


300/- has been shown in column No. 5. For the same purpose, he also referred to document Exhibit D. 1 which is an extract from the assessment year 1989-90. In support of his submissions, the learned counsel placed reliance on two judgments of this Court in Radhey Sham and Ors. v.


Kaushalya Devi W/o Behari Lal, 1984 Current Law Journal 326, and Bakshi Jaswant Singh v.


Smt. Pushpa Devi and Ors. , (1988-1)93 P. L. R. 477. As regards the finding of the learned appellate Court that adverse inference should be drawn against the appellant-defendant as he failed to produce the books of accounts in support of the averment that the room in question was taken by the appellant on a rent of Rs. 300/-, the learned counsel submitted that no adverse inference could be drawn against the defendant for non-production of the books of accounts. In support of this submission, he placed reliance on a judgment of the Supreme Court in Smt. Indira Kaur and Ors. v. Sheo Lal Kapoor, 1988 (2) S. C. C. 488.


5. Mr. Kapoor, learned senior counsel appearing on behalf of the respondent, submitted that in the present case, there is a written contract (mortgage deed) executed between the parties and this document is a registered one. He submitted that the terms of the contract were duly mentioned in the mortgage deed and the contents of the deed clearly show that it was a mortgage deed for a consideration of Rs. 10,000/- for one room in the property in dispute. He submitted that once the terms of the contract are reduced in writing, Section 92 of the Evidence Act prohibits the court from looking into the oral evidence. In support of this submission, he placed reliance on a judgment of the Supreme Court in the case of Svenska Handelsbanken v. Indian Charge Chrome, A. I. R. 1994 S. C. 626.


6. The learned counsel further submitted that in the written statement, the appellant-defendant had taken a stand that in fact the room was rented out to him at a monthly rent of Rs. 300/- but, the appellant who was maintaining books of account did not produce the books of account to prove his case. He, therefore, contended that the courts below have rightly drawn and adverse inference for the non-production of the accounts books. Lastly, the learned counsel submitted that there was concurrent finding of fact given by the learned courts below to the effect that the appellant-defendant had executed the mortgage deed Exhibit P. 1 and the said document was not a sham one and in terms of the law laid down by the Hon'ble Supreme Court, the High Court should not re-appreciate the evidence. In support of this contention, the learned counsel placed reliance on a judgment of the Supreme Court in Motilal Daulatram Bora and Ors. v. Murlidhar Ramchandra Bhutabe (since deceased) by his LRs) and Ors. , JT 1996 (5) S. C. 615.


7. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have perused carefully the judgments of the Courts below. It is the admitted case of the parties that they had executed the mortgage deed dated 15. 9. 1980, Exhibit P. 1. The stand taken by the appellant-defendant, in the written statement filed before the learned trial Court, was that the said document was a sham one and in fact the room in question was rented out to the appellant at a monthly rent of Rs. 300/ -. Both the courts below have given concurrent finding of fact that the mortgage deed Exhibit P. 1 which was duly registered, was not a sham document.


From Para 17 of the judgment of the appellate court. I find that the findings of the Courts below are based on legal evidence. This document was attested, by two witnesses, namely Ram Lal and Nand Lal and it has been proved on record that Nand Lal who had supported the case of the appellant-defendant is his brother-in-law whereas PW Ram Lal was not related to the plaintiff-owner. Even from the contents of the document, Exhibit P. 1 it is dear that the said document is a mortgage deed which was executed for a consideration of Rs. 10,000/ -. The learned courts below while recording this finding have also relied on the statement of appellant Hari Chand himself who deposed that he was occupying another shop in Sabji Mandi on rent for the last 20/30 years and has been paying the rent against receipt, and he never paid rent to that landlord without receipt. But in the present case, the appellant did not produce any rent receipt.


Further he admitted that he was maintaining regular books of account for the purpose of Income-tax but did not produce his books of account to prove his assertion that be was paying monthly rent of Rs. 300/- for this shop. From this, it is clear that the concurrent findings of the Court below are based on legal evidence. As held by the Supreme Court in the case of Motilal Daulatram Bora, the High Court could not embark upon re-appreciation of evidence to come to its own conclusion.


8. As regards the contention of the learned counsel for the appellant that the plaintiff was a rich man at the relevant time and as such the question of mortgaging this room with the defendant did not arise. I do not find any merit in this contention. On this point also, both the courts below have recorded concurrent finding that as per the statement of the defendant himself, the plaintiff was involved in the business of sale and repair of bicycles. From this, it cannot be concluded that the plaintiff was not in need of money. In view of the clear terms mentioned in the mortgage deed itself which was duly registered, it was not of much relevance to rely on any oral evidence that the plaintiff-owner was a rich person. As held by the Hon'ble Supreme Court in the case of Svenska Handelsbanken (supra) once the terms of a contract are reduced in writing, the Court cannot look into the oral evidence.


9. As stated herein before, the appellant-defendant had himself taken the stand that the mortgage deed Exhibit P. 1 was a sham document and in view of the admission of the appellant-defendant that this document was executed between the parties, the onus lay on the appellant-defendant to prove that in fact the room/shop in question was rented out to him at a monthly rent of Rs. 300/ -.


To prove his

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case, it was necessary for the appellant to produce the books of accounts particularly when, according to his own admission, he was maintaining such books of account. In view of these facts, the ratio of judgment of the Supreme Court in Smt. Indira Kaur (supra) is not applicable to the facts of the present case. Further as stated in the earlier part of the judgment, the findings of the Courts below are based on other legal evidence also. In the present case, admittedly the terms of the contract between the parties were reduced into writing in the mortgage deed, Exhibit P. 1 which was duly registered and as such, the judgment of the Supreme Court in the case of Svenska Handelsbanken (supra) would apply to the present case. In view of the concurrent findings of fact that the mortgage deed Exhibit P. 1 is not a sham document, the judgment in the cases of Radhey Sham (supra) and Bakshi Jaswant Singh (supra) are not applicable to the present case. 10. For the reasons recorded herein before, I do not find any merit in this appeal and the same is dismissed with no order as to costs.
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