Rakesh Kumar Jain, J.:— Plaintiff has come up in appeal against the judgment and decree of Additional District Judge, Faridkot dated 18.7.1998 whereby judgment and decree in his favour dated 22.7.1996 passed by Additional Civil Judge (Sr. Division) Gidderbaha was set aside.
2. Briefly stated, the facts of the case are that Ajmer Kaur widow of Kartar Singh son of Hari Singh was the owner of the property measuring 4 marlas 7 sarsai situated at Gidderbaha. She had constructed double story shop measuring 25′ × 16′ on the area measuring 1 marla 7 sarsai. Vide mortgage deed 7.5.1987, Ajmer Kaur mortgaged with possession, double story shop constructed on 1 marla 7 sarsai to the defendants for a sum of Rs. 40,000/-.
3. The plaintiff brought the present suit for possession by way of redemption against the defendants in respect of the property mortgaged by Ajmer Kaur vide mortgage deed dated 7.5.1987 alleging therein that by virtue of a Will in his favour executed by Ajmer Kaur, the ownership rights in the property in dispute have devolved upon him.
4. The suit was contested by defendants. In the written statement it was admitted that Ajmer Kaur had executed a mortgage deed in favour of the defendants on 7.5.1987 but it was denied that the plaintiff is the legal heir of Ajmer Kaur. It was also denied that any Will was executed by Ajmer Kaur in favour of the plaintiff. It was rather claimed that she had left behind natural heirs who have not been impleaded in this case and as such, the suit was bad for non joinder of necessary parties. It was further claimed that the possession of the suit property was with Sanjeev Kumar, son of the defendants, six months prior to 7.5.1987, who is continuously in possession and is carrying on business in the name and style of Sanjeev Metal Works but he has not been impleaded as a party. It was also asserted that Murti Rani is a house wife and question of her physical possession/occupation of the premises does not arise.
5. In the replication, the plaintiff reiterated his case and denied the averments of the written statement.
6. On the pleadings of the parties, the trial Court framed the following issues:—
1. Whether the shop in dispute was already in possession of Sanjeev Kumar son of defendant as tenant who was mortgagee? OPD.
1-A. Whether the defendants Nos. 1 and 2 were not put in possession of the shop at the time of mortgage deed dated 7.5.1987 as recited therein? OPD.
2. Whether the defendants are not liable to deliver the possession of the disputed shop to the plaintiff despite the redemption of the mortgage? OPD.
3. Whether the suit is bad for non-joinder of necessary parties? OPD.
4. Whether this Court has no jurisdiction to try this suit? OPD.
5. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD.
6. Whether the plaintiff is legal heir of Ajmer Kaur and has got locus standi to file the present suit? OPD.
7. Relief.”
7. Both the parties led oral as well as documentary evidence. Plaintiff Sohan Singh examined himself as PW1 whereas Amritpal was examined as PW2. Defendants examined Sarabjit Singh as DW1, Sanjeev Kumar as DW2, Surinder Singh as DW3, Manjit Singh as DW3/1 and Behari Lal as DW4.
8. The trial Court consolidated issues No. 1, 1-A & 2 and decided all the issues against the defendants and in favour of the plaintiff. In respect of issue No. 3, it was held that the plaintiff has a right to come to the Court being legal heir of Ajmer Kaur on the basis of registered Will in his favour. It was further held that the defendants are the mortgagees and in no manner, the suit is bad for non-joinder of necessary parties. No other person was required to be made a party and this issue was decided against the defendants and in favour of the plaintiff. While deciding issue No. 6, the trial Court observed that much stress has been put by the learned counsel for the defendants on the fact that the plaintiff has not been able to prove Will of Ajmer Kaur as per Section 68 of the Indian Evidence Act. It was further found by the trial Court that the plaintiff had filed the suit as legal heir of Ajmer Kaur on the basis of registered Will, copy of which was placed on record as Ex.PW2.A. It was also observed that matter regarding inheritance of Ajmer Kaur came before the Civil Court in Civil Suit No. 1358-1 of 18.9.1990, which was decided on 10.12.1993 in which Will in question was held to be legal and valid in favour of the plaintiff and it was held that he is the legal heir of Ajmer Kaur. It was further held that suit was between the plaintiff and natural heirs of Ajmer Kaur, On the basis of judgment and decree, mutation of inheritance regarding the estate of Ajmer Kaur was sanctioned in favour of the plaintiff vide Ex.P5 It was held by the trial Court that question of defendants being not a party in the earlier suit, is not of much significance as the matter of inheritance of Ajmer kaur is to be decided between her heirs whether natural or otherwise and no outsider can be made a party to such litigation. The trial Court, on the basis of findings on all the issues, decreed the suit as prayed for by the plaintiff.
9. The defendants filed the first appeal wherein their counsel made a statement that he does not want to advance any argument with regard to issues No. 1, 1-A, 2 to 5, therefore, only issue No. 6 was argued before the first Appellate Court. The first Appellate Court, however, decided issue No. 6 in favour of the defendants and dismissed the suit vide judgment and decree dated 18.7.1998
10. The plaintiff has filed the second appeal which was admitted on 18.1.1999 After the admission of the appeal, the appellant filed CM No. 6930-C of 2003 under Order 23 Rule 1 read with Section 151 CPC for withdrawing the appeal. The application was supported by affidavit of the present appellant. Immediately, thereafter, an application bearing No. 8301- C of 2003 under Order 1 Rule 10 CPC and under Order 22 Rule 10 read with Section 151 CPC was filed by Ishar Singh son of Surain Singh son of Ram Singh resident of Sukhna Ablu, Tehsil Gidderbaha, District Muktsar to be impleaded/substituted as an appellant on the ground that plaintiff Sohan Singh appointed one Inder Singh s/o Prem Singh s/o Kishan Singh resident of village Husner, Tehsil Muktsar as his attorney by executing registered General Power of Attorney in his favour on 24.4.1995 who had sold the property measuring 4 marlas 2 sarsai including 1 marla 7 sarsai where the shop is constructed to him for Rs. 2,25,000/- and received Rs. 1,85,000/-. The balance amount of Rs. 40,000/- was left with Ishar Singh as ‘Amanat’ to be paid to defendant Bihari Lal and others for the purpose of redemption of mortgage. It was also mentioned in the application that out of 4 marlas 7 sarsai, 1 marla 7 sarsai having the shop, was sold vide registered sale deed Annexure A-3 and rest of the land was sold vide separate registered sale deed Annexure A-4. It was also mentioned in the application that now Sohan Singh has become greedy and had started threatening to withdraw the appeal and has claimed Rs. 5 lacs from him for its continuance. Therefore, it was prayed in the aforesaid miscellaneous application of Ishar Singh that he may be made a party in order to continue the appeal.
11. Vide order dated 25.7.2003 passed by this Court, both the aforesaid applications bearing Nos. 8301-C and 6930-C of 2003 were ordered to be heard with the main case.
12. It is also pertinent to mention here that another Civil Miscellaneous application bearing No. 1724-C of 2004 under Section 151 CPC was filed on behalf of Sohan Singh for hearing of Civil Misc. Application No. 6930-C of 2003 i.e for withdrawal of the appeal. The Civil Misc. Application No. 1724-C of 2004 was however, dismissed by this Court on 8.3.2004 holding that since two Miscellaneous Applications No. 8301-C of 2003 and 6930-C of 2003 have been ordered to be heard at the time of hearing the main case, therefore, there was no justification to hear the CM application bearing No. 1724-C of 2004 before the main appeal is actually heard.
13. Mr. G.S Bhatia, Mr. Gurcharan Dass and Mr. Jagbir Singh Brar, Advocates, have appeared for applicant Ishar Singh to pursue application bearing No. 8301-C of 2003 whereas Mr. J.R Mittal, Sr. Advocate with Mr. Kashmir Singh, Advocate has appeared for Sohan Singh, the original appellant and Mr. Surinder Garg, Advocate for the respondents.
14. Although, Mr. G.S Bhatia, Advocate had advanced arguments in support of CM No. 8301-C of 2003 for impleading Ishar Singh as appellant in place of Sohan Singh appellant, who wanted to withdraw the appeal but since counsel for the appellant Sohan Singh has fairly made a statement before the Court that he does not want to withdraw the appeal or to pursue CM No. 8301-C of 2003, therefore, both the applications bearing CM Nos. 8301-C and 6930-C of 2003 have become infructuous and are dismissed as such.
15. Reverting to the main case, counsel for the appellant has argued that the findings recorded by lower Appellate Court on issue No. 6, are unsustainable, firstly on the ground that the findings on issues No. 1, 1-A, 2 to 5 returned by the trial Court while granting preliminary decree, were not challenged and had become final. It was submitted that while deciding issue No. 3, the trial Court had categorically held that the plaintiff had come to the Court as legal heir of Ajmer Kaur on the basis of registered Will and no other person was required to be made a party in this case. It was next submitted that the first Appellate Court has wrongly observed that Will Ex. PW2.A was required to be proved in accordance with Section 68 of the Indian Evidence Act by examining at least one attesting witness and the statement of PW2 Amritpal Singh, Scribe, is not sufficient to fulfill the requirement of law as the Scribe can not be treated as attesting witness. The first Appellate Court also observed that judgment and decree Ex.P3 and Ex.P4 respectively, though relevant piece of evidence, is not conclusive proof of due execution of Will Ex.PW2.A. Counsel for the appellant has drawn the attention of this Court to judgment dated 10.12.1993 (Ex.P3) passed by Additional Sr. Sub Judge, Gidderbaha whereby the suit filed by Tehal Singh etc. v. Sohan Singh etc. was dismissed. It was argued that both the Courts had decided that Ajmer Kaur had executed a registered Will dated 16.1.1989 in favour ofthe appellant and the suit of the legal heir was dismissed. It is pertinent to mention that issue with regard to Will dated 16.1.1989 regarding the estate of Ajmer Kaur, had become final between the legal heirs on one side and the plaintiff on the other. Therefore, in case any suit is filed afresh on behalf of legal heirs, the same was barred by principles of res judicata in view of Section 11 CPC.
16. Counsel for the appellant has vehemently argued that so far as the defendants are concerned, they are the only mortgagees in possession of the property of Ajmer Kaur and he, being the LR on the basis of mutation of inheritance Ex.P5, is entitled to redeem the property from the defendants. Attention of the Court was drawn to Sections 59-A and 91 of the Transfer of Property Act and it was submitted that mortgagor and mortgagee shall be deemed to include persons entitled deriving from them. It was thus argued that since the plaintiff has stepped into the shoes of the original mortgagee by virtue of Will which has already been proved in collateral proceedings, the plaintiff had a right to redeem the property in possession of the mortgagees. On the basis of above submission, counsel for the appellant stated that following questions of law are involved in this appeal, which are reproduced are as under:
1. Whether the suit for redemption of mortgage is maintainable by the person, who inherits title from mortgagor and has been declared owner in another suit for declaration in view of the provision of Sections 91 and 59-A of Transfer of Property Act?
2. Whether the appellant/plaintiff is liable to prove the Will again in a suit for redemption especially when the Will has already been upheld in a suit for declaration?
3. Whether the mortgagee can challenge the Will executed by owner/mortgagor especially when the same has already been upheld in other suit decided earlier judgment and decree Ex.P3 and Ex.P4 between the legal heirs of owner/mortgagor?
4. Whether the decree vide which Sohan Singh plaintiff-appellant has been declared owner of the property in question is admissible in evidence under Section 13 of Evidence Act. Even though one of the party that too mortgagee is not a party to the suit for declaration in view of judgment reported in JT 1998 (2) SC 231?
5. Whether in view of the provisions of Sections 13, 40 and 41 of Evidence Act previous judgment declaring title of the property even if the same is not inter se party to the suit for redemption is admissible in evidence?
6. Whether respondents/defendants without challenging the findings on issue No. 3 can challenge the findings on issue No. 6?
7. Whether the appellant Sohan Singh is entitled to recover mesne profits for the period from the date of filing the suit till delivery of possession?
17. In support of his contention that even if the previous judgment is not inter parties as held by the first Appellate Court, still it is avaible in evidence under Section 13 of the Evidence Act, reliance has been placed upon judgment of Hon'ble Supreme Court in the case of Tirumala Tirupati Devasthanams v. K.M Krishnaiah, 1998 (3) RCR (Civil) 6 : 1998 (1) RCR (Rent) 610 : JT 1998 (2) 231.
18. On the other hand, Mr. Surinder Garg, learned counsel for the respondents has submitted that since the plaintiff has failed to prove due execution of the Will in the present suit as he has not examined any attesting witness except for the Scribe, the plaintiff cannot be held to be the legal heir of Smt. Ajmer Kaur and has no right to redeem the property as a mortgagor.
19. I have heard counsel for the parties and with their assistance, perused the record.
20. In the present case, the whole controversy revolves around the decision on issue No. 6 on the point as to whether the plaintiff is the legal heir of Ajmer Kaur and has got locus standi to file the present suit. The burden was upon the defendants to prove. It is an admitted fact on record that Ajmer Kaur, who was the original owner mortgaged the suit property with possession for Rs. 40,000/- with the defendants. It is also an admitted fact that Ajmer Kaur, had executed a registered Will Ex.PW2.A in favour of the plaintiff on the basis of which mutation of inheritance was recorded in favour of the plaintiff. It is also an admitted fact that natural heirs of Ajmer Kaur namely Tehal Singh etc. had assailed the validity of said Will in favour of the plaintiff before the competent Civil Court and had lost up to the first Appellate Court and thereafter that judgment and decree had become final between them. It is also not in dispute that mortgagee defendants were not a party in that suit. Now the question is that once the Will has been proved before the competent Civil Court, is it required to be proved again in another suit where the title flowing from the Will in favour of the plaintiff has been disputed or in other words, whether the judgment in the previous suit which was though not between the present parties, is admissible in evidence.
21. In the case of Tirumala Tirupati Devasthanams (supra), the Hon'ble Supreme Court has pleased to hold as under:
“In our view, this contention is clearly contrary to the rulings of this Court as well as those of the Privy Council. In Srinivas Krishna Rao Kango v. Narayan Devji Kango speaking on behalf of a Bench of three learned Judges of this Court, Venkatarama Ayyar, J. held that a judgment not inter parties is admissible in evidence under Section 13 of the Evidence Act as evidence of an assertion of a right to property in dispute. A contention that judgments other than those falling under Sections 40 to 44 of the Evidence Act were not admissible in evidence was expressly rejected. Again B.K Mukherjea, J. speaking on behalf of a Bench of four learned Judges in Sital Das v. Sant Ram held that a previous judgment not inter parties, was admissible in evidence under Section 13 of the Evidence Act as a ‘transaction’ in which a right to property was ‘asserted’ and ‘recognised’. In fact, much earlier, Lord Lindley held in the Privy Council in Dinamoni v. Brajmohini that a previous judgment, not inter parties was admissible in evidence under Section 13 to show who the parties were, what the lands in dispute were and who was declared entitled to retain them. The criticism of the judgment in Dinamoni v. Brajmohini and Ram Ranjan Chakerbati v. Ram Narain Singh by Sir John Woodroffe in his commentary on the Evidence Act was not accepted by Lord Blanesburgh in Collector of Gorakhpur v. Ram Sunder.”
22. In my opinion, the above judgment applies to the facts of the case because even if the defendants were not the parties to the earlier suit but Will in question has already been proved as against the natural heirs and does not require to be proved again. Judgment and decree of the previous suit though not inter partes is admissible in evidence and the Will in question in favour of mortgagors, does not require to be proved again. A mortgagee in possession has thus, no right to retain the property by denying the title of the mortgagor specially when the mortgagor is ready to repay the amount of mortgage and the dispute with regard to the original title has already been settled between the natural heirs and the plaintiffs, who are the heirs of Ajmer Kaur. Thus substantial questions of law that have been raised by the appellant, are answered in his favour.
23. In view of the above discussion, the present appeal is allowed and judgment and decree of the first Appellate Court dated 18.7.1998 is set aside with costs.
Appeal allowed.