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1978 DIGILAW 56 (KER)

PONNAMMA PILLAI v. BHASKARAN NAIR

1978-02-23

V.KHALID

body1978
Judgment :- 1. The defendant is the appellant. This second appeal arises from a suit for redemption of a mortgage and recovery of possession. The defence was that the defendant was entitled to the benefit of S.4A (1) (b) of Act I of 1964. This contention was based on the fact that the defendant had removed and reconstructed a building which originally stood on the property at the time of mortgage. 2. Both the Court held against the defendant and hence this second appeal. 3. The only question of law which falls for consideration is, whether the defendant is entitled to the benefit under S.4A (1) (b) of Act 1 of 1964. According to the defendant, he is residing in the building constructed by him. According to the plaintiff there was a building at the time of the mortgage. 4. The trial Court has discussed the question in detail in Para.4 of its judgment. It is seen that there was originally a building on the property when Ext. Al mortgage deed was executed. It cannot be disputed that the building as it now stands is not the same building as it originally stood. But the new building bears the same T. C. number as the old ' building. The defendant has not produced any evidence to show that he had obtained a licence from the Trivandrum Corporation within whose limits the building is situated for a new construction. The evidence of pw.1 itself is not consistent. At one stage he would say that it is a new construction and at another place be would say that it is a re-construction. According to him, the old building collapsed and got destroyed by the falling of a coconut tree on it. From the evidence available both the Courts have come to the conclusion that the defendant bad only renovated the building that was existing in the property. The question is as to whether a re-construction would help the defendant in his attempt to get the benefit of S.4A (1) (b) of Act I of 1964. S.4A (1) (b) reads as follows: "4A; Certain mortgages and lessess of mortgagees to be deemed tenants. The question is as to whether a re-construction would help the defendant in his attempt to get the benefit of S.4A (1) (b) of Act I of 1964. S.4A (1) (b) reads as follows: "4A; Certain mortgages and lessess of mortgagees to be deemed tenants. (1) Notwithstanding anything to the contrary contained in any law or in any contract, custom or usage, or in any judgment, decree or order of court, a mortgagee with possession of land, other than land principally planted with rubber, coffee, tea or cardamom, or the lessee of a mortgagee of such land shall be deemed to be a tenant if (b) the mortgagee or lessee has constructed a building for his own residence in the land comprised in the mortgage and he was occupying such building for such purpose for a continuous period of not less than twenty years immediately preceding such commencement:" From a reading of the section it is clear that a person can get the benefit of the section only if he satisfies all the conditions laid down therein. It is not sufficient if the person who claims the benefit succeeds only in establishing that he bad re-constructed or renovated the building He must satisfactorily prove that he constructed a building in the mortgaged property and has been in continuous occupation of it for more than 20 years This section, which gives a - substantial benefit to a mortgagee and restricts the right of the mortgagor, has to be construed strictly. The evidence in this case which has found acceptance at the hands of the Courts below is that the building was only re-constructed by the defendant. I hold in confirmation of the evidence of the Courts below that the defendant is not entitled to the benefit of S.4A (1) (b) of Act I of 1964. In the result, the second appeal is dismissed. The parties are directed to bear their costs. Dismissed.