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2004 DIGILAW 1212 (PNJ)

Ajinder Pal Singh Virk v. Sudarshan Kumar

2004-11-01

ADARSH KUMAR GOEL

body2004
ORDER Adarsh Kumar Goel, J. - The respondent-plaintiff filed a suit for possession by way of redemption. Case of the plaintiff is that he received a sum of Rs. 5,000/- as an earnest money under an agreement dated 24.9.1980 for mortgaging the suit property and possession was handed over to the defendant. Mortgage deed was not executed. He filed eviction application, wherein the defendant took the stand that he was a mortgagee under the said agreement. Eviction suit was dismissed on a finding that the defendant was a mortgagee. 2. The defendant contested the suit denying the title of the plaintiff and also denying the mortgage. 3. The trial Court decreed the suit. It was held that in view of documentary evidence, inter alia, of order Ex. P-3 dated 8.8.1995 passed by the Rent Controller, the defendant-appellant was the mortgagee. It was held that even if it is held that there was no mortgage, the plaintiff could recover possession on the basis of his title in view of law laid down by the Apex court in Kolathoor Variath and another v. Pairaprakottoth Cheriya Kumhahammad Haji, AIR 1974 SC 689. 4. Appeal against the decree of the trial Court has been dismissed. Hence this appeal. 5. Learned counsel for the appellant submitted that mortgage could be created only by registered instrument, as provided under Section 59 of the Transfer of Property Act, 1882 (for short, the Act). Reliance is placed on a judgment of the Patna High Court in Sheikh Bhukhan Mian v. Srimati Radhika Kumari Debi and another, AIR 1938 Patna 479 and a judgment of this court in Raj Singh v. Deepak Kumar, 1987(1) PLR 389. It was also submitted that the courts below ought to have passed a preliminary decree in accordance with Order 34 Rule 7 of the Code of Civil Procedure for redemption and final decree for possession ought to have been passed on payment of money due. 6. Learned counsel for the respondent submitted that the courts below were justified in decreeing the suit for possession as the plaintiff has set up his title and also proved relationship between the parties by a previous inter- parties order Ex. P-3. It was also stated that the defendant has not set up title or any other right. 6. Learned counsel for the respondent submitted that the courts below were justified in decreeing the suit for possession as the plaintiff has set up his title and also proved relationship between the parties by a previous inter- parties order Ex. P-3. It was also stated that the defendant has not set up title or any other right. It was further submitted that his client is prepared to pay the principal amount and does not require accounts to be rendered. It was also submitted that since the appellant has raised an objection as to mortgage and denied the mortgage, procedure of preliminary decree is not applicable and plaintiff is entitled to possession on return of the amount he received from the appellant. 7. I have considered the rival submissions and perused the record. 8. The appellant has not questioned the title of the plaintiff nor set up his own title. By a previous inter-parties order Ex. P-3, parties have been declared to be mortgagor and mortgagee. No mortgage deed has been executed but the plaintiff has received a sum of Rs. 5,000/- from the defendant and given possession of the suit property to the defendant. Thus, even if the plea of the defendant that in absence of registered mortgage deed, no mortgage came into existence is to be accepted, the plaintiff will be entitled to a decree for possession on payment of Rs. 5,000/-. Contentions raised on behalf of the appellant have no merit. The trial Court has referred to the decision of the Apex Court in Kolathoor Variaths case (supra), wherein it was held that even where there is no mortgage deed, plaintiff will be entitled to decree for possession on the basis of title unless there was any legal objection to such a decree being passed. In the present case, no such legal objection has been raised on behalf of the appellant. Objection of a preliminary decree being passed can also not be sustained in view of the plea taken by the defendant that there was no mortgage. The defendant has also not shown any claim for any other amount which may be due to him of which account may be required to be taken. Objection of a preliminary decree being passed can also not be sustained in view of the plea taken by the defendant that there was no mortgage. The defendant has also not shown any claim for any other amount which may be due to him of which account may be required to be taken. On the other hand, the defendant being in possession, was liable to render accounts for the produce of the land and in this view of the matter, there is no prejudice caused to the defendant by not passing of preliminary decree. Accordingly, this appeal is dismissed. It is, however, made clear that the respondent-plaintiff will deposit the amount of Rs. 5,000/- in court before executing the decree for possession. Appeal dismissed.