Veena Devi v. Yogesh Kumar

1. By this Regular Second Appeal challenge is laid to two concurrent judgments of the Courts below by which the suit of the 2014:DHC:466 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 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 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. Ne