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2003 DIGILAW 1552 (RAJ)

LR’s of Moolchand v. Chhitarmal

2003-11-14

PRAKASH TATIA

body2003
JUDGMENT 1. - Heard learned counsel for the parties. 2. The plaintiff filed the suit for eviction against the defendant-appellant alleging therein that the suit property was mortgaged to one Shri Kankamal and the mortgagee in possession let out the property to the defendants. The plaintiff redeemed the property from mortgage on 28.10.1997. Thereafter, after redemption, the plaintiff is entitled for the possession of the property in dispute as he has no right to continue in possession because he was the tenant and the mortgagee or not of the mortgagor. The plaintiff also sought decree for possession on the ground of his personal bona fide need. 3. The defendant submitted that property was taken from Kankamal in the year 1966 and thereafter, in the year 1966-67 he invested some money and constructed new floor and put one shutter in the shop. The defendant denied the claim of the plaintiff about personal need. The trial Court framed as many as eight issues. The issues No. 1 & 3 are with respect to the fact of mortgage and its redemption and about the right of the plaintiff to seek possession from the defendant on the ground of redemption of mortgage. The trial Court decided the issues in favour of the plaintiff holding that after redemption, the mortgagee's tenant has no right to continue in possession and the plaintiff is entitled for the decree for possession. However, the trial Court decided the issue of personal necessity of the plaintiff against the plaintiff. In view of the finding recorded by the trial Court on the issues No. 1 & 3, the trial Court decreed the suit for possession against the defendant. The appeal was preferred by the tenant against the judgment and decree of the trial Court dated 21.12.1998. The appeal was dismissed by the appellate Court on 14.7.2003. Therefore, this second appeal by the tenant-appellant. 4. Learned counsel for the appellant vehemently submitted that the suit property was redeemed on 28.10.1978, but the suit was filed by the plaintiff in the year 1992 and, therefore, the defendant-appellant became the tenant of the plaintiff-respondent. It is also submitted that the plaintiff filed the suit under the provisions of Rent Control Act and not treating the defendant as trespasser in the property in dispute. It is also submitted that the plaintiff filed the suit under the provisions of Rent Control Act and not treating the defendant as trespasser in the property in dispute. It is also submitted that for the purpose of getting possession from the mortgagee or the tenant of the mortgagee, the plaintiff is required to pay the Court fees on the market value of the property. Learned counsel for the appellant relied upon the judgment of the Hon'ble Supreme Court delivered in the case of Pomal v. Vrajlal reported in AIR 1989 SC 436 wherein it has been held that even apart from Section 76(a) if the words of the mortgage deed clearly and indubitably express an intention to allow expressly creation of a tenancy beyond the term of the mortgage, then the lease created in exercise of the power expressly conferred by the mortgage deed would be binding on the mortgagor. According to learned counsel for the appellant, there is no restriction in the mortgage deed against letting out the property beyond the term of the mortgage rather the language used in the mortgage deed indicates that mortgagor gave permission to the mortgagee to let out the property beyond the term of the mortgage. 5. Learned counsel for the appellant submits that continuation in possession of the lessee and acceptance of the rent by the owner of the property may result into creation of the tenancy as held by Andhra Pradesh High Court in the case of Bomisetti Ramachandra Rao v. N.R. Manikya Rao, reported in AIR 1972 AP 198 . Learned counsel for the appellant also relied upon the judgment of this Court delivered in the case of Malam Singh v. Suriderlal, reported in 1993(1) WLC (Raj.) 412 wherein this Court held that the suit after redemption against the tenant of the mortgage is a suit for recovery of possession and it is required to be valued according to the market value of the property and Court fees is payable on such valuation. 6. I considered the submissions of learned counsel for the appellant. First of all, it is clear that the plaintiff in his plaint specifically pleaded that the mortgage was redeemed on 28.10.1978 and the mortgagor asked the tenant to vacate the premises upon which he assured that on getting another shop, he will vacate the premises. 6. I considered the submissions of learned counsel for the appellant. First of all, it is clear that the plaintiff in his plaint specifically pleaded that the mortgage was redeemed on 28.10.1978 and the mortgagor asked the tenant to vacate the premises upon which he assured that on getting another shop, he will vacate the premises. The plaintiff served the notice upon the defendant on 11.11.1991, but he did not vacate the premises. The trial Court framed the issues on the plea of the defendant that whether the suit premises was redeemed by the plaintiff from Kankamal and thereafter, the defendant did not remain the tenant in the premises and specifically framed the issue No. 3 that after redemption, the plaintiff is entitled for decree of possession against the defendant. Despite the pleas taken by the plaintiff in the written statement and issues framed by the trial Court, the defendant-appellant did not set up his case of tenancy with the mortgagor at any point of time. The relationship of landlord and tenant depends upon the contract between two parties and is a question of fact for which foundation is required to be laid down to construct the plea. In this second appeal, this disputed question* of fact cannot be permitted to be raised. Therefore, I do not find any force in this plea of the learned counsel for the appellant. 7. The judgment relied upon by learned counsel for the appellant delivered in the case of Pomal (supra) does not support the appellant rather its supports the respondent-plaintiff. Hon'ble Supreme Court in this case very specifically held that the intention of creation of the tenancy beyond the term of the mortgage most be expressly included in the mortgage deed to sake the tenancy binding upon the mortgagor. Here in this case, it is clear from the perusal of the mortgage deed itself that there is no expressed term in the mortgage deed permitting the mortgagee to allow the tenancy beyond the period of mortgage. Here in this case, it is clear from the perusal of the mortgage deed itself that there is no expressed term in the mortgage deed permitting the mortgagee to allow the tenancy beyond the period of mortgage. Not only this, but in the mortgage deed, it is clearly mentioned that in pursuance of the right created under the mortgage, the mortgagee will be entitled to use and enjoy the property and will be free to let out the property, Therefore, the right to enjoy and use the property was only in pursuance of the mortgage created by the document and not beyond the period for which even the mortgagee himself was not allow to enjoy the property. Therefore, in this case, it cannot be held that the appellant-tenant-defendants is tenant of the mortgagor plaintiffs. 8. The objection about the Court fees haS been raised by the appellant is not in the written statement and there is nothing on record on.the basis it can be gathered that the plaintiff has not paid the Court fees as required by the law. The Section 11 of the Rajasthan Court Fees Act provides that objection about the Court fees is required to be taken as early as possible and even it permits raising of objection and its decision before hearing of the suit. Otherwise, also, if the -defendant would have taken this objection about the non-payment of the proper Court fees, the Court was under objection u/s. 11 of the Rajasthan Court Fees & Suit Valuation Act to give time to the plaintiff to furnish the stamps of proper valuation before dismissing the suit. 9. In view of the above, on this count the second appeal cannot be entertained, which is more related to the revenue of the State rather than the right of the appellant-defendant. In view of the above, I do not find any force in this appeal. Hence, the appeal of the appellant is dismissed. 10. At this stage, learned counsel for the appellant prayed that the tenant may be provided reasonable time so that they make an alternative arrangement. In view of the above, I do not find any force in this appeal. Hence, the appeal of the appellant is dismissed. 10. At this stage, learned counsel for the appellant prayed that the tenant may be provided reasonable time so that they make an alternative arrangement. Learned counsel for the respondents has serious objection, but looking to the facts and circumstances of the case that the tenant was in possession since long and he will have to sift his business from the premises in dispute, therefore, it will be proper that one year's time may be granted to the tenant appellant provided any one or more of the appellants furnishes an undertaking on behalf of all the appellants that they will not part with the possession or subletting the premises in dispute during this period and shall hand-over the vacant possession of the property in dispute to the landlord on or before 1.12.2004 and shall pay all the arrears of rent, if due and cost of the litigation as awarded in the decree passed by the Courts below and shall continue to pay manse profit before the trial Court month by month. The decree will not be executed till 1.12.2004. The undertaking be filed within a period of one month from today and in case, the undertaking is not filed within the stipulated period or in case of any default in manse profit the decree shall be executable forthwith.Appeal dismissed. *******