Delhi High Court
Smt. Veena Devi vs Sh. Yogesh Kumar on 24 January, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.19/2014
% 24th January, 2014
SMT. VEENA DEVI ......Appellant
Through: Mr. Nitin Ahlawat, Advocate.
VERSUS
SH. YOGESH KUMAR ...... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
C.M. No.1352/2014 (exemption)
Exemption allowed subject to just exceptions.
C.M. stands disposed of.
C.M. No.1353/2014 (condonation of delay)
For the reasons stated in the application, delay of 27 days in
filing the appeal is condoned.
C.M. stands disposed of.
+ RSA No.19/2014
1. By this Regular Second Appeal challenge is laid to two
concurrent judgments of the Courts below by which the suit of the
RSA No.19/2014 Page 1 of 4
appellant/plaintiff by which redemption was prayed of the mortgaged suit
property being house on plot No.2, Block A-2, JJ Colony, Slum Sector-1,
Pappan Kalan, Dwarka, New Delhi. The case as set up on behalf of the
appellant/plaintiff was that though the documents in question dated 1.7.2004
were documents evidencing transfer of rights in the suit property and such
documents were also registered yet by the said documents dated 1.7.2004
actually only a mortgage was created in favour of the respondent/defendant.
The further case on behalf of the appellant/plaintiff was that the
appellant/plaintiff regularly paid monthly interest towards mortgage created
till about December, 2009 i.e for over five and half years, at which stage
when she decided to redeem the mortgaged property the defendant refused,
and hence the subject suit came to be filed.
2. Both the Courts below have held that the documents dated
1.7.2004 are on the face of the documents not mortgage documents but
documents of transfer of rights in the suit property to the defendant. Besides
the fact that documents are also registered documents, the husband of the
appellant/plaintiff was also a witness to these documents, by which rights in
the suit property for a consideration of Rs.50,000/- were transferred to the
defendant/respondent. Courts below also note that case of the
RSA No.19/2014 Page 2 of 4
appellant/plaintiff of having regularly paid interest amount of Rs.1000/- per
month for about five and half years without any documents proved
evidencing the same cannot be believed. The Courts below have further
held that the second set of documentation by which one Sh. Rajinder Prasad
had sold another property bearing No.B-220, Pappan Kalan, Dwarka to the
defendant dated 21.1.2004 again were not mortgage documents as claimed
by the appellant/plaintiff but were in fact documents of transferring of title
of the suit property to the respondent/defendant and therefore
appellant/plaintiff failed to prove that defendant/respondent used to regularly
give loans and getting properties mortgaged in his favour.
3. I do not find any illegality or perversity in findings and
conclusions of both the courts below. In fact in addition to the conclusion of
the courts below I must note that stand of the appellant/plaintiff seems to be
barred in view of Sections 91 and 92 of the Evidence Act, 1872 as per which
no oral evidence can be taken to contradict the terms of the written
documentation inasmuch as no fraud is played upon the appellant which was
alleged but not proved by her. In any case, both the courts below have
rightly observed that the stand of the appellant/plaintiff of their being only a
RSA No.19/2014 Page 3 of 4
mortgage and not transfer of the rights in the suit property by the subject
registered documents is quite clearly unbelievable.
4. A second appeal under Section 100 CPC can be filed only if
there arises a substantial question of law. Even a question of law is not
sufficient for filing of the second appeal. In the present case the issues
raised can be of appraisal of evidence but no substantial questions of law
arise. Even if the evidence was appraised and the suit was decided by me as
a trial court or the first appellate court, I do not find that there is any
illegality whatsoever arrived at by the courts below in holding that there was
no mortgage which was created as claimed by the appellant/plaintiff, but in
fact rights in the suit property were transferred by the registered documents.
5. Since no substantial questions of law arise, the second appeal is
therefore without any merit, and the same is dismissed, leaving the parties to
bear their own costs.
JANUARY 24, 2014 VALMIKI J. MEHTA, J.
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