Research › Search › Judgment

Punjab High Court · body

2003 DIGILAW 6 (PNJ)

Ajay Kumar v. Gujjar Mal

2003-01-07

M.M.KUMAR

body2003
Judgment 1. The Short question raised in this appeal filed under Sec. 100 of the Code of Civil Procedure, 1908 (for brevity the Code) by the plaintiff-appellant is Whether a mortgage would continue to enjoy his status as tenant in relation to the mortgagor which was pre-existing prior to the execution of the mortgage deed. Challenge in this appeal is to the concurrent findings of facts recorded by both the Courts below dismissing the suit of the plaintiffappellant Ajay Kumar, who stands in the shoes of the mortgagor and the defendantrespondent 1 Gujjar Mai who is the mortgagee. 2. Brief facts of the case which are necessary for disposal of the instant appeal are that the plaintiff-appellant Ajay Kumar filed a civil suit for possession bearing No. 64 of 1977/329 of 1977 on 17-9-1977/18-7-1977. He claimed that he is entitled to seek actual physical possession by redemption in respect of the disputed shop which he claimed to have purchased on 25-5-1977 from the original owner Dev Raj and Mulkh Raj, defendant-respondents 2 and 4. He further averred that the shop was earlier mortgaged with possession by Dev Raj and Lekh Raj, defendant-respondents 2 and 3 to the extent of 2/3rd share in favour of mortgagee Gujjar Mal, defendant-respondent 1 for total sum of Rs. 2000/- vide registered mortgage deed, Ex. D-l dated 18-7-1947. It was further stated by the plaintiff-appellant that defendant respondent 1 Gujjar Mal has been in possession of the suit shop since 18-7-1947 when the mortgage in his favour was executed to the extent of 2/3rd share by defendant-respondents 2 and 3. According to the stipulation, the mortgage could be redeemed on payment of Rs. 2000/- along with interest thereon. Later on, a compromise was entered on 12-7-1954 stipulating that the shop in question could be redeemed by making payment of Rs. 2000/- only. The plaintiff-appellant asserted that he was entitled to redeem the mortgaged shop by making payment of Rs. 2000/- to defendant-respondent 1 Gujjar Mai. who is the mortga gee. It is claimed that he served a registered notice on the defendant-respondent 1 to accept the mortgage amount and deliver possession of the shop, but he declined. 3. Defendant-respondents 2, 3 and 4 were also made party to the suit, but they did not appear to defend and contest the suit. who is the mortga gee. It is claimed that he served a registered notice on the defendant-respondent 1 to accept the mortgage amount and deliver possession of the shop, but he declined. 3. Defendant-respondents 2, 3 and 4 were also made party to the suit, but they did not appear to defend and contest the suit. Consequently, they were proceeded ex parte by the learned Sub Judge vide his order dated 15-4-1977. 4. Defendant-respondent 1 Gujjar Mal. the mortgagee, however, contested the claim of the plaintiff-appellant. He expressed complete lack of knowledge with regard to the fact that the plaintiff-appellant had purchased the disputed shop, but admitted that defendant-respondents 2 to 4 were the original owners and defendant-respondents 2 and 3 had mortgaged their 2/3rd share in the shop in dispute to him on 18-7-1947 vide registered mortgage deed, Ex. D-l. He categorically denied the correctness of the averments that the possession of the shop was delivered to him on 18-7-1947 and asserted that he has been in continuous possession of the shop in dispute long years prior to 18-7-1947 as a tenant under defendant-respondents 2 to 4, who have equal shares in the shop in dispute. He further asserted that the rate of rent was increased from Rs. 5/- to Rs. 12.50 paise per month from 15-7-1954 on the basis of a compromise arrived at between him and defendant-respondents 2 to 4. According to him, defendant-respondents 2 and 3 were entitled to redeem the disputed shop after making payment of Rs. 2000/- along with interest at the rate of 7.5% per annum and such other amount as would be spent by defendant-respondent 1 on carrying out repairs of the said shop. Rs. 5000/- is claimed to have been spent on repair to keep the shop in fit condition. The defendant-respondent 1 seriously disputed the right of the plaintiffappellant to redeem the property. 5. On the basis of the pleadings of the parties, the Sub Judge framed the following issues : "1. Whether the plaintiff is the owner of the property in dispute by virtue of purchase. If so, its effect? OPP 2. Whether defendant No. 1 was a tenant under defendant Nos. 2 to 4 prior to the execution of mortgage deed dated 18-7-1947, If so, its effect ? OPD 3. Whether defendant No. 1 made any repairs in the property in dispute ? If so, its effect? OPP 2. Whether defendant No. 1 was a tenant under defendant Nos. 2 to 4 prior to the execution of mortgage deed dated 18-7-1947, If so, its effect ? OPD 3. Whether defendant No. 1 made any repairs in the property in dispute ? If so, of what amount and with what effect ? OPD 4. If issue No. 2 is proved, whether the plaintiff is entitled to redeem the mortgage without making the payment of the amount spent by the defendant No. 1 upon the property in dispute ? OPP 5. Relief." 6. On issue Nos. 1, 3 and 4, the findings have been recorded by both Courts in favour of the plaintiff-appellant by holding that the plaintiff-appellant has become the owner of the disputed shop and would accordingly enjoy all those rights which were enjoyable by the previous owners, namely defendant-respondents 2 to 4. It was also held that no repair was effected by the defendant-respondent 1 and, therefore, issue Nos. 3 and 4 were accordingly disposed of. The findings recorded by the learned Sub Judge on issue Nos. 1, 3 and 4 have been affirmed as the same were not challenged by the defendant-respondent 1. 7. On the core issue No.2, which was to the effect as to whether defendant-respondent 1 was a tenant under defendant-respondents 2 to 4 prior to the execution of mortgage deed dated 18-7-1947 (Ex. D-l). the findings recorded by both courts are in favour of the defendant-respondent 1. The relevant observation of the learned Additional District Judge on the aforementioned issue reads as under : "....... Thus the combined ard cumulative effect of the oral testimony furnished by Murari Lal DW 1, Parshotam Lai DW 2, Rattan Lal DW 3, Achhru Mal DW 6 and Gujjar Mal DW 9 and the documentary evidence in the shape of Ex. D3, Ex. D4, ExD5 and Ex. D6 and that furnished by Balwant Rai DW 7 is that Gujjar Mal defendant respondent No. 1 is proved convincingly and clinchingly to have been in possession of the shop in suit as a tenant much prior to 18-7-1947 when the mortgage deed Ex. DI came into being when Dev Raj and Lekh Raj defendant-respondents No. 2 and 3 mortgaged this shop in favour of defendant No.l for Rs. DI came into being when Dev Raj and Lekh Raj defendant-respondents No. 2 and 3 mortgaged this shop in favour of defendant No.l for Rs. 2000/-.........." The learned Additional District Judge also rejected the submission made on behalf of the plaintiff-appellant that the judgment of the Supreme Court in the case of Shah Mathuradas Maganlal & Co. V/s. Nagappa Shankarappa Malage, AIR 1976 SC 1565 was attracted to the facts of the instance case. It has been held that no implied surrender of tenancy rights by defendantrespondent 1 could be inferred because Ex. D-l left nothing in doubt that the mortgagee, defendant-respondent 1 was to charge interest at the rate of 7.1% per annum on the mortgage amount of Rs. 2000/-. There is no stipulation in the mortgage deed, Ex. D-l dated 18-7-1947 that defendant respondent 1, the mortgagee by executing the mortgage deed ever surrendered his possession of the disputed shop. On the contrary, Ex. D-3, a compromise arrived at between defendant-respondent 1, the mortgagee, and defendant-respondents 2 and 3. the mortgagors, clearly demonstrates that the monthly rate of rent was raised from Rs. 5/- to Rs. 12.50 paise. This compromise, Ex. D-3 itself furnishes the proof of the fact that defendant respondent 1, the mortgagee, never surrendered his tenancy rights. It is on the basis of the aforementioned facts that the Courts-below came to a firm conclusion that the defendant-respondent 1, mortgagee, all along continued to be in possession of the shop in question even before the execution of the mortgage deed dated 18-7-1947, Ex. D-l and he never surrendered his tenancy rights. Therefore, it has been further held that the tenancy rights never merged in his rights as a mortgagee. 8 Mr. R. S. Mittal, learned Senior counsel assailing the view taken by the Courts below has submitted that the use of words Malkana possession in the mortgage deed, Ex. D-l would indicate that the mortgagee, defendant-respondent 1 surrendered his tenancy rights and took possession as a mortgagee only. The learned counsel has further pointed out that defendant-respondents 2 and 3, the mortgagors, filed a suit for possession of 2/3rd share by redemption on 6-1-1954. but the suit was compromised on 12-7-1954 with a stipulation that the defendant-respondent 1 would continue to be a mortgagee for a sum of Rs. The learned counsel has further pointed out that defendant-respondents 2 and 3, the mortgagors, filed a suit for possession of 2/3rd share by redemption on 6-1-1954. but the suit was compromised on 12-7-1954 with a stipulation that the defendant-respondent 1 would continue to be a mortgagee for a sum of Rs. 2000/- in accordance with the conditions of mortgage deed dated 18-7-1947 and he would also remain in possession. However, the rent of the shop was raised to Rs. 12.50 paise per month which would be received by all the three brothers i.e. defendant-respondents 2, 3 and 4. The shop was redeemable to the extent of 2/3rd share by defendant-respond ents 2 and 3 on payment of Rs. 2000/-. The learned counsel has also argued that, thereafter, the plaintiff-appellant purchased the entire disputed shop from defendant- respondent 2 to 4 by a registered sale deed dated 25-5-1977 and has become entitled to redeem the same by taking possession. According to the learned counsel, the suit of the plaintiff-appellant for possession on payment of the mortgage amount to the extent of 2/3rd share to defendant-respondent 1 was bound to succeed and the plaintiff-appellant was entitled to possession by redeeming the 2/3rd share in the shop in dispute by paying a sum of Rs. 2000/- to defendant-respondent 1. He has further asserted that the plaintiff-appellant would not be entitled to merely a symbolic possession as decreed by the Courts below, but actual physical possession. For the aforementioned proposition, reliance again has been placed on the judgment of the Supreme Court in the case of Shah Mathuradas Manganlals case (AIR 1976 SC 1565) (supra). Another submission made by the learned counsel is that the doctrine of merger as envisaged by Section 111 (e) and 111 (f) of the Transfer of Property Act, 1882 (for brevity TPA) is attracted to the facts of this case. He has made a reference to Ex. P-1, the sale deed executed by defendant-respondents 2 to 4 on 25-5-1977. 9. Ms. Gurinderjit Kaur, learned counsel appearing for the defendant-respondent 1 has argued that there is no question of surrendering of tenancy rights by the defendant-respondent 1, nor the same could be inferred from any document. The learned counsel has pointed out that all doubts are put to rest when Ex. D-3 which is equivalent to Ex. 9. Ms. Gurinderjit Kaur, learned counsel appearing for the defendant-respondent 1 has argued that there is no question of surrendering of tenancy rights by the defendant-respondent 1, nor the same could be inferred from any document. The learned counsel has pointed out that all doubts are put to rest when Ex. D-3 which is equivalent to Ex. D-4 dated 12-7-1954 is kept in view, because this document shows that the rent of the shop was increased from Rs. 5/- to Rs. 12.50 paise per month. Therefore, the learned counsel submitted that neither doctrine of merger would apply, nor the judgment in the case of Shah Mathurdas Manganlals case (AIR 1976 SC 1565) (supra) rendered by the Supreme Court would be attracted. 10. Having heard the learned counsel for the parties at a considerable length and after perusing the record as well as the judgments of both the courts below, I am of the considered view that the findings of fact re corded by both the Courts below with regard to tenancy of defendant-respondent 1 cannot be assailed in an appeal filed under Section 100 of the Code. The mortgagors by mortgaging the shop to the defendant-respondent 1 did not deprive the defendant respondent 1 from his tenancy rights. The use of expression delivery of possession or delivery of malkana possession in the mortgage deed, Ex. D-I. cannot by any stretch of imagination be interpreted to mean that the defendant-respondent 1 surrendered his tenancy rights. On the record, there are documents like Ex. D-4, D-5 and D-6, which are prior to the date of execution of the mortgage deed dated 18-7-1947. The document Ex. D-4 is the photostat copy of the original application filed by defendant-respondent 1 to the Electricity Board for release of electric connection and Ex. D-5 and D-6 are the photostat copies of the reports with regard to the electricity connection. The original record was brought by one Bal Krishan, Sub-Division Clerk, PSEB, Sub-Division Deressi Road, Ludhiana, which shows that the application is dated 11-5-1935. Similarly, defendant-respondent 1 Balwant Rai, clerk from the office of the Excise and Taxation Office, Ludhiana appeared as DW-7, who brought the property tax register for the year 1946 to 1951 and 1951 to 1956. According to the record pertaining to the year 1946 to 1951, defendant-respondent 1 is shown in the column of tenant and the gross annual rent of Rs. According to the record pertaining to the year 1946 to 1951, defendant-respondent 1 is shown in the column of tenant and the gross annual rent of Rs. 60/- had been recorded. It is on the basis of these over-whelming documentary evidence coupled with oral testimony of various witnesses and other documents that the Courts-below reached the conclusion, that the defendant-respondent 1 has been a tenant prior to the mortgage of the disputed shop by defendant respondents 2 and 3 in favour of defendant-respondent 1 on 18-7-1947. It has also been rightly held that these tenancy rights continued to exist as is clear from Ex. D-3 dated 12-7-1954, which is a compromise increasing the rent from Rs. 5/- to Rs. 12.50 paise. In these circumstances, I do not find any room to interfere in these findings of fact because under Sec. 100 of the Code, if this Court on re-appreciation of evidence cannot record ; a conclusion different than the one recorded by the Courts-below as it is not permissible in law. 11. Even otherwise, the general princi- ple of law Is that there is no automatic merger of the tenancy rights with the mortgage rights. Both of them operate independent of each other and on redemption of the mortgage, tenancy would revive except in a I case where an intention of the parties is refleeted to the contrary. For the aforementioned view, reliance could be placed on the judgments of the Supreme Court in the cases of Parmar Kanaksinh Bhagwansinh v. Makwana Shanbhai Bhikhabhai (1995) 2 SCC 501 : (1995 AIR SCW 188) and Cheriyan Sosamma V/s. Sundaressan Pilial Saraswathy Amma. (1999) 3 SCC 251 : (AIR 1999 SC947). Therefore, the general principles would apply as no merger of right could be inferred. 12. The argument of the learned counsel based on the judgment of the Supreme Court in Shah Mathuradas Manganlals case (AIR 1976 SC 1565) (supra) does not require any detailed consideration because in that case, no interest was payable on the mortgage amount and in lieu thereof, the possession of the mortgaged property was to remain with the mortgagee. It was also found that there was surrender of tenancy by the mortgagee on the execution of the mortgage deed dated 21-5-1953. It was also found that there was surrender of tenancy by the mortgagee on the execution of the mortgage deed dated 21-5-1953. The mortgage deed expressly showed that the mortgagee surrendered his tenancy rights and the tenancy was to continue till 6-11 -1953 and the period of 10 years for redemption of the mortgage was to commence from that date. The possession of the mortgagee in his capacity as such was confirmed from 7-11-953. It was on the basis of these facts that the suit for actual physical possession filed by the mortgagor was decreed along with the right to redeem. However, in the instant case, these features are completely missing and the same could not be ignored. Therefore, under Sec. 111 (e) or 111 (f) of the TPA, it could not be assumed that there was an implied surrender of tenancy rights. In such a situation, the tenancy rights would revive on the redemption of mortgage by the mortgagor. Therefore, neither the judgment in Shah Mathuradas Maganlals case (AIR 1976SC 1565) (supra) nor Sec. 11 l(e) or 11 l(f) of TPA would have any application to this case. 13. For the reasons recorded above, this appeal fails and the judgment and decree passed by the courts below are affirmed. Accordingly, the plaintiff appellant would be entitled to redeem 2/3rd share in the shop in dispute mortgaged by defendant-respond- ents 2 and 3 on payment of Rs. 2000/- to defendant-respondent 1. The defendant-re- spondent 1 has been held to a tenant and, therefore, the plaintiff-appellant would be entitled to only symbolic possession of the shop in dispute. There shall be no order as to costs. Appeal dismissed.