Chattisgarh High Court
Smt.Sulochana vs Jagat Ram (Died And Deleted) Through Lrs on 3 April, 2025
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
Page 1 of 7
2025:CGHC:15571
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
SA No. 524 of 2006
1 - Smt.Sulochana D/o Shri Santram Ganda, Aged About 38 Years R/o
Village- Bonda, P.S.- Baramkela, P.S.- Sariya, Tahsil-Sarangarh,
District-Raigarh (Chhattisgarh)
... Appellant
versus
1 - Jagat Ram (Died And Deleted) Through Lrs. As Per Honble Court
Order Dated-07-08-2024.
1.1 - Smt. Potna Bai D/o Late Jagat Ram, W/o Heeralal, Aged About 50
Years R/o Village Mithumuda, Raigarh, P.S.-Jutmil, Raigarh (C.G.)
1.2 - Lal Sai S/o Late Jagat Ram, Aged About 47 Years R/o Village And
Post- Bonda, P.S.-Sariya, Tahsil- Sarangarh, District- Raigarh (C.G.)
1.3 - Kumar Dansena S/o Late Jagatram, Aged About 45 Years R/o
Village And Post- Bonda, P.S.-Sariya, Tahsil- Sarangarh, District-
Raigarh (C.G.)
1.4 - Bhola Ram S/o Late Jagat Ram, Aged About 42 Years R/o Village
And Post- Bonda, P.S.-Sariya, Tahsil- Sarangarh, District- Raigarh
(C.G.)
1.5 - Smt. Rongo D/o Late Jagatram, W/o Daduram Dansena, Aged
About 38 Years R/o Village And Post- Bauda, P.S.-Sariya, Tahsil-
Sarangarh, District- Raigarh (C.G.)
2 - State Of Chhattisgarh, Through District Collector, Raigarh (C.G.)
KISHORE
KUMAR ---- Respondents
DESHMUKH
For Appellant : Shri A.N. Bhakta, Shri vivek Bhakta and Shri
Dilesh Kurre, Advocates
For State : Shri K.L. Sahu, Dy. Govt. Advocate
Hon'ble Shri Justice Narendra Kumar Vyas
Order on Board
03.04.2025
1. This appeal has been preferred by the appellant/plaintiff under
Section 100 of the Code of Civil Procedure, 1908 (hereinafter
referred to as the 'CPC') questioning the legality and propriety of
the judgment and decree dated 16.06.2006 passed by the
learned District Judge, Raigarh (C.G.) in Civil Appeal
No.4-A/2006, whereby the first appellate Court has rejected the
appeal filed by the plaintiff and affirmed the judgment and decree
dated 22.12.2005 passed by the Civil Judge, Class-I, Raigarh,
(C.G.) in Civil Suit No. 3-A/2005 whereby the suit filed by the
plaintiff for redemption and grant of mesne profit has been
dismissed.
2. The parties to this appeal shall be referred to hereinafter as per
their description in the civil suit.
3. Briefly stated the facts of the case are that
3.A) Plaintiff filed a suit before the learned Civil Judge, Class I
Raigarh mainly contending that she is the owner of land
Khasra No. 94/2K, area 0.385 Ha. situated at village - Bonda,
P.H.N. 30, Tah. - Sarangarh, District - Raigarh (hereinafter
referred to as 'the suit land'). The plaintiff took loan of Rs.
3000/- from the defendant and a mortgage deed to this effect
that the property will be mortgaged for three years was
executed before the Registrar, Sarangarh. As per the
Mortgage Deed the suit land was in possession of the
defendant and he is taking mesne profit in place of interst. It
is also the case of the plaintiff that she is entitled for redeem
of mortgage and possession of suit property. The plaintiff to
execute the mortgage deed has gone to the office of the
Registrar for execution deed but keeping her in dark a sale
deed was excuted by the defendant for sale consideration of
Rs. 5000/-.
3.B) Subsequently on the second day of the Holi festival of
June 1995, when the plaintiff asked for the defendant to hand
over the possession of the suit property as per the terms of
the mortgage, the defendant asked to pay Rs. 18000/- with
interest at the rate of 5% which arose dispute between them.
3.C) To settle the dispute a Panchayat meeting was called in
the village but the defendant refused to hand over possession
of the suit property. The plaintiff sent a registered notice dated
7-6-1996 in compliance of Section 83 of the Transfer of the
Property Act to the defendant. The defendant refused to
accept the notice which necessitated her to file suit for
redemption of the mortgage and cancellation of sale deed
dated 10.04.1992. it has also been prayed that the defendant
is in possession of the land unauthorisedly and prayed for
grant of mesne profit to the tune of Rs. 2000/- which comes to
Rs. 6000/-.
3.D) The defendant filed written statement denying the
allegation made in the plaint mainly contending that in the
mortgage deed he has not put his signature therefore, it
cannot be said that it was a valid mortgage deed. It has also
been contended that the sale deed dated 10.04.1992 has
been executed in the presence of the witnesses and there is
no mention of the redemption of the mortgage deed in the
sale deed. A false and fabricated case has been projected by
the plaintiff. The suit property has been purchased on the sale
consideration of Rs. 5000/-. There was sale-purchase
agreement between them and would pray for dismissal of the
suit.
3.E) Learned trial Court on the pleadings of the parties as many
as 5 issues. Issue No. 2 and 3 are important and they are
extracted below :-
2- D;k oknh okn i= dh vuqlwph ^v* esa nf'kZr Hkwfe dk ca/kdekspu djk ikus] dCtk
ikus dk vf/kdkjh gS \
3- D;k oknh okn i= dh vuqlwph ^v* esa nf'kZr Hkwfe dk e/;orhZ ykHk dqy
6000@& :i;s izkIr djus dk vf/kdkjh \
3.F) The plaintiff to substantiate her case has examined
herself as PW/1, Bharat Lal Thawait as PW/2, Kalashram
Mehar as PW/3, Satyendra Kumar Mehar PW/4, Ghurau as
PW5, Hemlal as PW/6 and Tilak Ram Patel as PW/7 and
exhibited documents i.e. Agreement (Ex.P/1), Gramsabha
Resolution (Ex.P/2), Complaint to Collector (Ex.P/3), notice
(Ex.P/4), returned envelop (Ex.P/5), receipt (Ex.P/6),
Rejection Order dated 03.04.1997 (Ex.P/7), Mutation Paper
(Ex.P/8) and sale deed (Ex.P/9). The star witness of the
plaintiff was herself. The plaintiff was extensively cross-
examined by the defendant wherein she has admitted that
she has put her signature in the sale deed Ex.D/1. She has
also admitted that she has accepted before the Registrar that
she is selling the suit property. She voluntarily stated that she
had said this because Jagat Ram had said her to say so.
3.G) The defendant to substantiate his case has examined
himself as DW/1 and Gopi as DW/2 and exhibited document
the sale deed as Ex.D/1. The defendant in his examination in
chief reiterated the stand taken by him in the written
statement and stated that the suit property was purchased by
him. The story projected by the plaintiff is false and
fabricated.
3.H) Learned trial Court on the basis of evidence and materials
on record, recorded its finding that plaintiff has unable to
prove her case, the transfer of property was validly
transferred by execution of sale deed Ex.D1 and dismissed
the suit.
3.I) Aggrieved with the impugned judgment and decree passed
by the learned trial Court, she filed first appeal before the
learned District Judge, Raigarh. Learned District Judge, on
appreciation of evidence and materials on record dismissed
the appeal and recorded its finding that no condition has been
mentioned in the agreement as well as the sale deed
regarding mortgage of the suit property. As such, it has
disbelieved the story of mortgage by the plaintiff. Being
aggrieved with the judgment and decree, she has preferred
present Second Appeal before this Court.
4. Learned counsel for the appellant would submit that the finding
recorded by the learned trial Court is perverse and contrary to
the evidence. Learned trial Court has not taken in to
consideration the provisions of Section 60 of the Transfer of
Property Act which provides redemption of the mortgage. The
plaintiff has been able to prove her case and also adduced
evidence still learned appellate Court has dismissed the appeal
on perverse finding as such, substantial question of law is
involved in the second appeal and would pray for admission of
the appeal.
5. I have heard learned counsel for the appellant and perused the
record.
6. From the evidence and materials placed before the learned trial
Court it is quite vivid that learned trial Court has recorded its
finding that there is no iota of evidence to suggest that mortgage
deed was executed and further the mortgage deed does not
contain the signature of the defendant, as such, it cannot to be
held to be legally constituted mortgage deed. The learned trial
Court on the proper appreciation of the evidence, considering the
materials on record has passed the judgment and decree which
has been affirmed by the learned first appellate Court, thus,
there is concrete finding of facts regarding non execution of
mortgage deed which cannot be said to suffer from perversity or
illegality. Considering the well settled position of law that for
admission of second appeal substantial question of law is sine-
quo-non. In absence of any substantial question of law required
to be adjudicated by this Court, the present second appeal
deserves to be dismissed.
7. Accordingly, the present Second Appeal is dismissed at the
stage of admission.
8. A decree be drawn up accordingly.
Sd/-
(Narendra Kumar Vyas)
Judge
kishore
