IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

Regular Second Appeal No.2154 of 2007

Date of decision: 21^st October, 2008

Harchand Singh

… Appellant

Versus

Surjit Singh

… Respondent

CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA

Present: Mr. R.K. Shukla, Advocate for the Appellant.

KANWALJIT SINGH AHLUWALIA, J. (ORAL)

This is the second appeal filed by Harchand Singh, defendant

to the suit. Surjit Singh plaintiff instituted a suit for the recovery of

Rs.17,160/- as interest/ damages for the period from 17^th September, 2001

to 16^th August, 2002. It was the case of the plaintiff that a mortgage deed

dated 17^th September, 2001 was executed by the defendant for a

consideration of Rs.1.00 lac. It was agreed between the parties that the

possession of the land will remain with the defendant and he shall pay

interest at the rate of 1.56 percent per month to the plaintiff – respondent. It

was further stated in the suit that despite various requests made, defendant

– appellant had not paid the interest, hence the suit was filed.

Notice was issued. Written statement was filed. Preliminary

objection regarding maintainability of the suit, cause of action were raised

on merits. It was submitted that the execution of the mortgage deed is due

to fraud. It had been stated that respondent was called for executing power

of attorney and instead mortgage deed had been got executed without

Regular Second Appeal No.2154 of 2007

bringing this fact to the knowledge of the appellant defendant to the suit. It

was stated that he had no knowledge of the mortgage deed. After the

pleadings were concluded, following issues were framed by the trial Court:

1. Whether the defendant executed a registered mortgage of

land fully detailed in the head note of plaint in favour of

plaintiff for a consideration of Rs. one lacs ? OPP

2. If issue No.1 is proved, whether plaintiff is entitled to

recover a sum of Rs. 17160/- by way of interest from the

defendant w.e.f. 17.9.2001 to 16.8.2002 as alleged ? OPP

3. Whether suit as framed is not maintainable ? OPP

4. Whether the suit of the plaintiff is speculative one, if so its

effect ? OPD

5. Whether plaintiff has got no cause of action to file the

present suit ? OPP

6. Relife.

Plaintiff examined Gurpal Singh, Scribe of the mortgage deed

(Ex.P-1). This was witnessed by Mohinder Singh Lambardar and Rajinder

Kumar Municipal Councilor. Rajinder Kumar Municipal Councilor, attesting

witness of the mortgage deed appeared as PW-2. Plaintiff himself

appeared as PW-3. Jiwan Dass Bhalla, who was posted in Treasury office

at Amloh, was examined as PW-4 to show that stamp papers for the

mortgage deed were purchased by the appellant Harchand Singh on 17^th

September, 2001. Defendant appeared as DW-1 and reiterated the version

taken by him in his written statement. From examination of scribe of the

mortgage deed, PW-1 Gurpal Singh, PW-2 Rajinder Kumar attesting

witness and on going through the mortgage deed, it was rightly concluded

by the trial Court that Rs.1.00 lac was handed over to the defendant and he

had executed mortgage deed (Ex.P-1). This fact is further corroborated

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Regular Second Appeal No.2154 of 2007

from the testimony of PW-4 Jiwan Dass Bhalla, who was a Clerk in the

Treasury and from whom stamp papers were purchased by Harchand

Singh appellant. The findings of the trial Court have been affirmed by the

appellate Court below. The appellate Court has relied upon the testimony

of attesting witness, wherein it was stated that mortgage deed was read

over to the defendant before the Sub-Registrar. Except the oral bald

assertion by the appellant, when he appeared as PW-1, there is no other

evidence led by him to disprove the mortgage deed (Ex.P-1). Appellate

Court has also taken into consideration the fact that no handwriting expert

was examined by the appellant.

During the course of arguments, counsel for the appellant has

stated that docu