2009 (12) TMI 1039

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....ief facts of the case are that the plaintiff is the widow of Avtar Singh who was a co-sharer in the land measuring 143 kanals 12 marlas to the extent of 1/3rd share situated at village Uchoke Khurd, Tehsil Baba Bakala, District Amritsar. Avtar Singh died on 10.1.1999. After his death, his 1/3rd share devolved upon the plaintiff as per Will dated 22.4.1998 executed by deceased Avtar Singh. The plaintiff had to file suit for permanent injunction restraining the defendants/respondents from interfering in the land to the extent of 1/3rd share of 143 Kanals 12 Marlas on the pretext of realisation of the amount of loan of Rs. 1,50,000/- which is alleged to have been advanced to her deceased husband Avtar Singh. On notice, defendants filed writ....

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....ed are: (i)Whether the judgment and decree of the District Judge suffers from perversity being completely contrary to pleadings? (ii)Whether merely placing on record photostat copies of documents, liability against a person can be sustained when neither execution of those documents has been proved nor even the original documents are produced in evidence? (iii)Whether the judgment and decree of the first Appellate Court holding that Avtar Singh availed loan from the Bank and the amount is recoverable by sale of suit land but the loan was availed by Mukhtiar Singh and as such, the Bank is entitled, can be sustained as the evidence is completely contrary to the pleadings of the parties. Sh.B.R.Mahajan, learned cou....

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....of a plea, no evidence is admissible. Thus, first question that has been raised by the learned counsel for the appellant that findings of the learned District Judge suffers from perversity being completely contrary to the pleadings of the parties, is answered in favour of the appellant and it is held that since the defendants had taken the plea in the written statement that they are interfering in the possession of the plaintiff for the purpose of possession and sale of her property for the purpose of recovery of amount advanced by the Bank to Mukhtiar Singh for the which Avtar Singh stood as a guarantor, the Bank cannot seek recovery in the garb of loan having been availed by Avtar Singh (deceased) which has not been proved even from the c....

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....he material evidence i.e. Original mortgage deed has not come on record. It is further evident that at no point of time, permission for proving the same by way of secondary evidence was obtained from the Court. By merely marking Ex. on the document does not become admissible in evidence though brought on record, has to be excluded from consideration. Further more, an objection to the admissibility of the evidence was taken when it was tendered in evidence. In this regard, the Ld.counsel for the plaintiff relied upon 2004(4) RCR (Civil) page 704 case titled as R.V.F. Venkatachala Gounder Versus Arulmigu Viswesaraswami & V.P.Temple and others in which their Lordship has held as under : "Document marked as exhibit, a document not admi....