Paramjeet Singh, J. - (1.) THIS regular second appeal is directed against the judgment and decree dated 23.03.2011 passed by learned Additional Civil Judge (Senior Division), Guhla, whereby the suit for recovery filed by the respondent/plaintiff has been decreed as well as against the judgment and decree dated 21.08.2013 passed by learned Additional District Judge, Kaithal, whereby the appeal filed by the appellants/defendants against the judgment and decree passed by the Court of first instance, has also been dismissed. For convenience sake, reference to parties is being made as per their status in the civil suit.
(2.) THE detailed facts of the case are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, the facts relevant for disposal of this second appeal are to the effect that plaintiff filed a suit seeking decree for recovery of Rs. 1,35,000/ - along with pendente lite and future interest at the rate of 18% per annum from 16.06.2007 till its realization on the ground that the defendants are owners of land mentioned in para No. 1 of the plaint and they had mortgaged the said land with possession of specific numbers of land comprised in rect. No. 78 killa No. 1 to 3, rect. No. 79 killa No. 4, 5 along with all rights for a sum of Rs. 1,35,000/ - in favour of the plaintiff vide duly executed and attested mortgage deed No. 926/1 dated 27.06.1995. The Defendants received the said amount in cash from the plaintiff. It was settled that the defendants/mortgagor can get the land redeemed after making payment of total mortgage amount. However, they failed to pay the amount of mortgage money and dispossessed the plaintiff forcibly after harvesting the wheat crop of 2007 and breached the terms of mortgage deed. The defendants despite repeated requests did not return the possession of the mortgaged land nor paid the mortgage money. Hence the suit. Upon notice, defendants appeared and filed written statement taking preliminary objections regarding maintainability, locus standi, jurisdiction and concealment of facts. It was submitted that the defendants used to sell their crops through the firm of plaintiff and the mortgage deed No. 926/1 dated 27.06.1995 was written and executed as security so that the defendants sell their crops through the commission agency of the plaintiff. After closing the accounts with the plaintiff firm, defendants had changed the commission agency at Samana Mandi 8 -9 years back under the name and style of M/s. Guru Arjan Dev Trading Company. The plaintiff had grudge against the defendants as they changed their commission agency from Cheeka to Samana. The plaintiff used the mortgage deed which was left with him as security and committed fraud with the defendants. On merits it was denied that the defendants had mortgaged their land as detailed in para No. 1 of the plaint with possession with specific number as alleged. It was also denied that rate of interest was fixed equal to the produce of mortgaged land. The possession of the suit land was never delivered to the plaintiff rather it was with the defendants. Rest of the averments made in the plaint were denied and controverted.
(3.) COURT of first instance, on perusal of pleadings of the parties, framed following issues: - "1. Whether the plaintiff is entitled to recovery of Rs. 1,35,000/ - along with interest as prayed for? OPP 2. Whether the Court has the jurisdiction to try and entertain the present suit? OPP 3. Whether the suit of the plaintiff is not maintainable in the present form? 4. Relief.";