The burden of proof for fraud lies with the alleging party, and mere allegations without cogent evidence are insufficient to invalidate a valid mortgage deed.

Judgment

Mr. Namit Kumar, J.

This regular second appeal is directed against the judgment and decree dated 18.01.2019 passed by Additional Civil Judge (Senior Division), Bahadurgarh, whereby suit for declaration filed by plaintiff-Jal Kaur (since deceased) was decreed as well as against the judgment and decree dated 11.08.2023 passed by Additional District Judge, Jhajjar, whereby appeal filed by the appellant-defendant against the judgment and decree dated 18.01.2019, has been dismissed.

2. For convenience sake, reference to parties is being made as per their status in the civil suit. The brief facts of the case are that plaintiff filed suit for decree of declaration with consequential relief of permanent injunction pleading therein that defendant was owner in possession of total land measuring 6 Kanal 7 Marla out of the land of Khewat Nos. 249 & 300, situated within the revenue estate of village Jassaur-Kheri, Tehsil Bahadugarh, District Jhajjar. Defendant approached plaintiff to obtain loan of Rs.18,00,000/- against the surety of the land owned and possessed by her. The loan was granted on 23.12.2012 and mortgage deed No. 7308 dated 23.11.2012 was executed and registered. The loan amount was to be returned within one year i.e. upto 22.11.2013 along with interest @ 2% per month. It was also agreed that in case of failure to return the loan amount, the defendant shall be bound to execute sale deed of mortgaged land in favour of plaintiff. However, defendant did not pay even a single penny and the principle amount has accumulated with interest to the tune of Rs.26,00,000/- till 22.10.2014. Plaintiff requested the defendant several times to repay the loan amount and to get the mortgage deed cancelled but of no result. Even legal notice dated 18.09.2014 could not fetch any result. Defendant finally refused to consider the request of plaintiff on 29.09.2014.

3. Upon notice, defendant contested the suit by taking initial objections with regard to cause of action, locus-standi and maintainability of suit. On merits, she denied in totality of receipt of loan and also upon the factum of execution of the mortgage deed. She submitted that the mortgage deed, if any, is result of fraud committed by plaintiff and witnesses. After submitting that the mortgage deed being illegal and invalid document as procured by committing fraud and after denying remaining averments of the plaint, the defendant lastly prayed for dismissal of the suit.

4. Replication was filed by the plaintiff reasserting the stand taken in the plaint and denying the averments of written statement.

5. From the pleadings of the parties, following issues were framed by the Court of first instance, vide order dated 23.02.2017:-

(1) Whether the plaintiff is entitled to a decree for declaration to the effect that the defendant be directed to make payment of the alleged amount to the plaintiff and/or execute the sale-deed in favour of the plaintiff, failing which the plaintiff be declared owner-in-possession of the land in dispute? OPP

(1A) Whether plaintiff is entitled to a decree for recovery of Rs.18,00,000/- on the grounds mentioned in the plaint as prayed for? OPP

(2) Whether the plaintiff is entitled to a decree for permanent injunction restraining the defendant from alienating and creating third party interest over the land in dispute fully detailed in para No. 3 of the plaint forcibly and illegally or otherwise in any manner? OPP

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

(4) Whether the plaintiff has no cause of action and locus standi to file the present suit? OPD

(5) Whether the plaintiff is estopped from filing the present suit by his own act and conduct? OPD

(6) Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD

(7) Whether the plaintiff has not come with clean hands and suppressed the material facts from this court? OPD

Relief

6. The parties led their respective evidence. The Court of first instance, after appreciating evidence