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2003 DIGILAW 920 (PNJ)

Satpal v. Rohtash

2003-07-10

M.M.KUMAR

body2003
Judgment M.M.Kumar, J. 1. This is defendants appeal filed under Section 100 of the Code of Civil Procedure, 1908, challenging the concurrent findings of facts recorded by both the Courts below. The short question which falls for consideration is whether the defendant-appellant who is mortgagee of the suit property is entitled to continue as tenant of the plaintiff-respondent, the mortgagor. 2. Plaintiff-respondent (now represented by his legal representatives respondent Nos. 1 to 4) filed a Civil Suit No. 380 of 1994 on 20.7.1994 for possession by way of redemption against the defendant-appellant asserting that he is owners of the suit property which was mortgaged by him vide mortgage deed dated 6.5.1989 for a consideration of Rs. 10,000/-. It has also been asserted that possession of the suit property was handed over to the defendant-appellant which was given back to the plaintiff-respondent on payment of due amount. According to the averments made by the plaintiff-respondents, defendant-appellant failed to hand over vacant possession after receiving the redemption amount. As a result, the instant suit was filed claiming possession by way of redemption. Further directions have also been sought against the defendant-appellant asserting that he is owner of the suit property which was mortgaged by him vide mortgage deed dated 6.5.1989 for a consideration of Rs. 10,000/-. It has also been asserted that possession of the suit property was handed over to the defendant-appellant which was given back to the plaintiff-respondent on payment of due amount. According to the averments made by the plaintiff-respondents, defendant-appellant failed to hand over vacant possession after receiving the redemption amount. As a result, the instant suit was filed claiming possession by way of redemption. Further directions have also been sought against the defendant-appellant to hand over vacant possession to the plaintiff-respondents after receipt of the redemption amount. The stand of the defendant-appellant in nut shell is that he is tenant under the plaintiff-respondent @ Rs. 200/- p.m. It has further been asserted that the mortgagee-deed was a sham transaction and was got executed with the object of ejecting him from the site in dispute as it was claimed that the tenancy existed before the execution of the mortgage deed dated 6.5.1989. Defendant-appellant also alleged that he has construed one room, one shed and four walls at a height of 9 feet and has incurred expenses of Rs. 60,000/-. The counter claim for recovery of Rs. Defendant-appellant also alleged that he has construed one room, one shed and four walls at a height of 9 feet and has incurred expenses of Rs. 60,000/-. The counter claim for recovery of Rs. 60,000/- along with interest, has also been made. 3. The trial court on the basis of the evidence led by the parties came to the conclusion that there was no evidence to show that defendant-appellant was in possession of the premises in dispute before the date of the execution of the mortgage deed. Therefore, he cannot be treated as a tenant of the plaintiff-respondents and was entitled to redeem the mortgage on the payment of redemption amount. It has further been found that the defendant-appellant had incurred expenses to the tune of Rs. 50,800/- on the construction of one room, one shed and four walls. On the Basis of the fore-going findings, the suit of the plaintiff-respondent for possession by way of redemption on payment of redemption amount was decreed by the trial Court. It was further directed that plaintiff-respondent shall pay to the defendant-appellant a sum of Rs. 50,800/- as the expenses incurred by the defendant-appellant on the construction of one room, one shed and four walls. 4. On appeal, the afore-mentioned findings have been affirmed by the Ld. Additional District Judge holding that there is nothing in the mortgage deed to indicate any intention of the plaintiff-petitioners to create a lease in favour of the defendant-appellant in respect of the suit property. It has also been proved that the defendant-appellant was in exclusive possession of the suit property in pursuance to mortgage deed Ex.P1 dated 6.5.1989 and he never remained in possession over the suit property as a tenant/lessee prior to that date. 5. Shri Sanjay Mittal, learned counsel has made an attempt to argue that intention of the mortgagor has to be gathered from the mortgage deed dated 6.5.1989. According to the learned counsel it must be held that the intention of the mortgagor was to create a tenancy and the mortgage deed was executed with the oblique motive to avoid the protection available to the defendant-appellant under the Haryana Urban (Control of Rent and Eviction) Act, 1973. 6. According to the learned counsel it must be held that the intention of the mortgagor was to create a tenancy and the mortgage deed was executed with the oblique motive to avoid the protection available to the defendant-appellant under the Haryana Urban (Control of Rent and Eviction) Act, 1973. 6. After hearing the learned counsel at a considerable length, I do not feel persuaded to take a view different than the one taken by the Courts below because it is well settled that in a suit for possession by way of redemption of mortgage, the mortgagee cannot acquire the right of tenancy by virtue of usufructuary mortgage. In cases where rent and interest have been made equivalent the mortgagee cannot acquire any tenancy right unless such rights are proved to be in existence before the execution of the mortgage deed. This principle of law has been reiterated by the Supreme Court in the cases of Mahabir Gope v. Harbans Narain Singh, A.I.R. 1962 S.C.C. 205, Mathurald v. Keshar Bai, A.I.R. 1971 S.C. 310, Shah Mathuradas Maganlal and Co. v. Nagappa Shankarappa Malage, (1976)3 S.C.C. 660, Hanumant Kumar Talesara v. Mohan Lal, A.I.R. 1988 S.C. 299, Carona Shoe Co. Ltd. v. K.C. Bhaskaran Nair, (1989)2 S.C.C. 395, Parmeswaran Govindan v. Krishnan Bhaskaran, 1993 Supp.(1) S.C. 572, Cheriyan Sosamma v. Sundaressan Pillai Saraswathy Amma, (1999)3 S.C.C. 251 and Nirmal Chandra v. Vimal Chand, (2000)5 S.C.C. 51. The proposition of law laid down by their Lordships in the case of Hanumant Kumar (supra) would be fully applicable to the case in hand. The relevant observations read as under: "17. On a conspectus of all these decisions we hold that the lease given by mortgagee during the subsistence of the mortgage came to an end on the redemption of the mortgage. It is pertinent to mention that the question whether after termination of mortgagees interest on redemption of mortgage the lessees can claim the benefit of Rent Act was considered by the Full Bench of Rajasthan High Court in Devkinandan v. Roshan Lal, 1984 Rajasthan LR 709:A.I.R. 1985 Raj. 31 (F.B.) and the High Court following the decisions of the Supreme Court has answered that "Tenant of the mortgagee in possession is not entitled to the protection of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 against the mortgagor after redemption of the mortgage". We fully agree with this view. 18. 31 (F.B.) and the High Court following the decisions of the Supreme Court has answered that "Tenant of the mortgagee in possession is not entitled to the protection of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 against the mortgagor after redemption of the mortgage". We fully agree with this view. 18. There is specific finding by all the courts below in the suit for redemption that the letting out of the premises to the tenant-appellant by the mortgagees is not a prudent act done in the ordinary course of the management. This finding being not challenged became final. The mortgagor landlord is entitled to get recovery of possession. We therefore, affirm the judgment and order of the High Court and dismiss the appeal. In the facts and circumstances of the case, there will be no order as to costs." Placing reliance on Sections 60, 76(h) read with Section 83 of the Transfer of Property Act, 1882 in Parmeswarans case (supra), their Lordships of the Supreme Court observed as under:- "A conjoint reading of Section 60, Section 76(h) read with Section 83 of the Transfer of Property Act would amplify that on deposit of the mortgage amount, the contractual relationship of mortgagor and mortgagee ceases. This Court in Prithi Nath Singh v. Suraj Ahir, A.I.R. 1963 S.C. 1041 held that when the mortgage money is paid by the mortgagor to the mortgagee, there does not remain any debt from the mortgagor to the mortgagee and, therefore, the mortgage can no longer continue after the mortgage money is paid. Therefore, on the payment of mortgage money or deposit thereof in the Court by (he mortgagor, the mortgage comes to an end and the right of the mortgagee to remain in possession also. Thereafter, the mortgagee continues in unlawful possession." 7. From the above principles of law it is evident that mortgagee cannot claim any right of tenancy unless he successfully shows that the tenancy had emanated from a transaction prior to the mortgage. It is also well settled that mortgagee cannot induct a tenant and confer upon him any right to the prejudice of the mortgagor. In the instant case, the relationship of defendant-appellant with plaintiff-respondent came into existence by virtue of mortgage deed dated 6.5.1989 and there was no tenancy in existence prior to that ate. It is also well settled that mortgagee cannot induct a tenant and confer upon him any right to the prejudice of the mortgagor. In the instant case, the relationship of defendant-appellant with plaintiff-respondent came into existence by virtue of mortgage deed dated 6.5.1989 and there was no tenancy in existence prior to that ate. Therefore, the above principle laid down by the Supreme Court would fully apply to the facts of the instant case and it has to be held that both the Courts have taken the correct view on facts and law. Therefore, the appeal is without merit and is thus liable to be dismissed. 8. The argument of the learned counsel that intention of the mortgagor-respondent was to create a tenancy in favour of defendant-appellant would not require any detailed consideration for the reason that no such intention has been reflected in the judgments of both the Court below. Learned counsel has also not been able to read anything from the mortgage deed dated 6.5.1989 substantiating that such an intention can be gathered therefrom. The findings of facts recorded by both the Courts below cannot be reopened in appeal under Section 100 of the Code. Therefore, there is no substance in the afore mentioned contention raised by the learned counsel and the same is rejected. For the reasons recorded above, this appeal fails and the same is dismissed.