The main legal point established in the judgment is that the appellant failed to prove that the mortgage deed was a sham document created to circumvent rent control legislation, and the evidence presented by the respondent to prove the mortgage deed was considered valid.

Rekha Mittal, J.

The present appeal directs challenge against judgment and decree dated 31.08.2005 passed by the Additional District Judge, Gurgaon whereby appeal against judgment and decree dated 15.09.2004 passed by the Civil Judge (Junior Division), Gurgaon (hereinafter referred to as the 'trial Court') was allowed and suit filed by the respondent/plaintiff was ordered to be decreed.

2. The facts relevant for disposal of present appeal are that the respondent/plaintiff filed suit for possession by way of redemption of mortgage in respect of the shop in question, situated in the abadi of Jacubpura, Gurgaon. It is averred that Sh. Bal Kishan, father of the plaintiff was owner in possession of said shop. He executed Will dated 30.08.1984 in favour of the plaintiff. Bal Kishan died on 11.05.1985 and thereafter, the respondent/plaintiff became sole owner in possession of the shop. Bal Kishan was in need of money and accordingly, he mortgaged the suit property in favour of the appellant/defendant vide mortgage deed bearing No.4311 dated 25.01.1984 and possession of the shop was delivered to the appellant. It was agreed that possession will be handed over to the respondent after payment of mortgage amount of Rs.10,000/-. The plaintiff called upon the defendant to receive the mortgage money but he refused on 07.11.1994.

3. The appellant/defendant filed the written statement and raised preliminary objection that the suit is not maintainable as he is a tenant in the shop in dispute. He also challenged locus standi of the plaintiff to file the suit and jurisdiction of the Civil Court to entertain and decide the suit. The suit is stated to be bad for non-joinder of necessary party and result of collusion between plaintiff and other heirs of Bal Kishan who had already collected rent in respect of the suit property from the defendant on various occasions. It is further averred that the plaintiff has concealed material facts from the Court. Govind Ram, brother of the plaintiff filed ejectment petitions under Section 13 of the Haryana Urban (Control of Rent and Eviction) Act admitting him to be tenant in the shop in dispute.

4. Bal Kishan was a man of means. He had no need to mortgage the property for a meagre sum of Rs.10,000/- despite the fact that property was worth Rs.1,50,000/- at the time of alleged mortgage. At the time of taking shop on rent, Bal Kishan insisted the defendant to sign some blank and printed papers, forms etc and those papers have been converted into mortgage deed but defendant never signed any mortgage deed. He has denied the plaintiff to be sole owner of the shop in dispute with the plea that all the legal heirs of Bal Kishan are owners of the shop in question.

5. The respondent filed replication and re-asserted his stand taken in the plaint while controverting the averments raised in preliminary objections.

6. The controversy between the parties led to framing of following issues on 03.04.1996:-

1. Whether the plaintiff is sole owner of shop in question? OPP

2. Whether the plaintiff is entitled for relief as claimed in suit? OPP

3. Whether the suit is not maintainable in the present form?OPD

4. Whether this Court has no jurisdiction to try the suit? OPD

5. Whether the plaintiff has no locus standi and cause of action to file the suit? OPD

6. Whether the suit is bade for non-joinder of necessary parties? OPD

7. Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD

8. Whether the plaintiff has suppressed the material facts from the Court? OPD

9. Relief.

7. The parties were permitted to adduce evidence in support of their respective claims. To prove his case, the respondent appeared in the witness box and examined Pardeep Kumar, DRC, Tehsil Gurgaon PW-2, Balbir Singh, Advocate PW-3, Nanak Singla, document writer PW-4, Smt. Usha from Record Room Gurgaon PW-5, Sube Singh PW-6, Rajpat Rai PW-7.

8. To rebut evidence of the plaintiff, the appellant/defendant examined himself and Om Parkas