Research › Search › Judgment

Punjab High Court · body

2012 DIGILAW 1065 (PNJ)

Dalbir Singh v. Jagdip Singh

2012-08-13

L.N.MITTAL

body2012
JUDGMENT Mr. L.N. Mittal, J.: (Oral) - Defendant Dalbir Singh (since deceased and represented by legal representatives) having failed in both the courts below has filed this second appeal. 2. Respondents/plaintiffs Jagdip Singh and Kuldip Singh filed suit for possession of the suit property by redemption of mortgage thereof. Plaintiffs’ case is that their predecessor-in-interest Amarjit Singh had mortgaged the disputed shop with possession with defendant Dalbir Singh vide registered mortgage deed dated 6.8.1979 for Rs.10,000/-. The plaintiffs have purchased the disputed shop from Amarjit Singh vide sale deed dated 7.9.1984 for Rs.20,000/-. Accordingly, the plaintiffs have become mortgagors of the suit property and defendant is in possession thereof as mortgagee. The plaintiffs sought possession of the suit property by redemption of the mortgage. 3. The defendant alleged that he was already in possession of the disputed property as tenant prior to the mortgage and he would continue to be tenant after redemption of the mortgage. The defendant relied on rent receipts as well as rent agreement dated 6.12.1979 in this regard executed by plaintiffs’ predecessor Amarjit Singh. It was thus pleaded that on redemption of mortgage, the plaintiffs would not be entitled to actual possession of the suit property. 4. Learned Sub Judge Ist Class, Amritsar vide judgment and decree dated 26.8.1989 decreed the plaintiffs’ suit for actual possession of the suit property by redemption of mortgage. First appeal preferred by defendant has been dismissed by learned Additional District Judge, Amritsar vide judgment and decree dated 20.4.1993. Feeling aggrieved, the defendant has filed this second appeal. 5. I have heard learned counsel for the parties and perused the case file. 6. There is no dispute that Amarjit Singh had mortgaged the disputed shop with defendant for Rs.10,000/- vide mortgage deed dated 6.8.1979 Ex. DW4/1 for Rs.10,000/- out of which mortgagor Amarjit Singh had already received Rs.5000/- whereas the balance mortgage amount of Rs.5000/- was to be paid upto 15.11.1979 against receipt. 7. Case of the defendant is that he paid the balance mortgage money of Rs.5000/- vide receipt dated 6.12.1979 Ex. D3 wherein mortgagor Amarjit Singh admitted that defendant was already tenant in the disputed shop and would continue to be tenant after redemption of the mortgage. Amarjit Sinmgh mortgagor and defendant also executed agreement dated 6.12.1979 Ex. D4 wherein also similar recital was inter alia made. D3 wherein mortgagor Amarjit Singh admitted that defendant was already tenant in the disputed shop and would continue to be tenant after redemption of the mortgage. Amarjit Sinmgh mortgagor and defendant also executed agreement dated 6.12.1979 Ex. D4 wherein also similar recital was inter alia made. It was stipulated that after redemption of mortgage, the tenancy of defendant would revive. Defendant has also produced in evidence rent receipts dated 20.8.1977 Ex. D1 and dated 20.9.1977 Ex. D2 regarding payment of rent by defendant to Amarjit Singh. 8. On the basis of the aforesaid documents, counsel for appellant contended that on redemption of mortgage, tenancy of defendant – appellant would revive and plaintiffs are not entitled to actual physical possession of the disputed shop. 9. On the other hand, counsel for respondents/plaintiffs contended that according to mortgage deed, possession of the disputed shop was delivered to defendant mortgagee pursuant to mortgage and it would depict that defendant was not already tenant in the disputed shop. It was also argued that the alleged tenancy of defendant merged with his mortgagee rights and consequently on redemption, plaintiffs/mortgagors are entitled to actual possession of the disputed shop. Reliance in support of this contention has been placed on two judgments of Hon’ble Supreme Court namely Shah Mathuradas Maganlal and Co. versus Nagappa Shankarappa Malaga and others, AIR 1976 SC 1565 (1) and Gambangi Appalaswamy Naidu and others versus Behara Venkataramanayya Patro, AIR 1984 SC 1728 (1). 10. I have carefully considered the rival contentions. The plaintiffs in order to prove their sale deed Ex. P1 examined vendor Amarjit Singh as PW1. He stated that he had mortgaged the disputed property with defendant and interest amount was to be adjusted against rent. He also stated that he subsequently sold suit property to plaintiffs vide sale deed Ex. P1 dated 7.9.1984. Amarjit Singh also stated that defendant was never tenant in the disputed shop. However, in cross-examination, the defendant admitted that original receipts Ex. D1 and D2 have been signed by him. He also stated that original receipt Ex. D3 is correctly written and has been signed by him. Similar statement was made by him regarding agreement Ex. D4. He deposed that this agreement was scribed by Deed Writer Jagdish Mittar and was read over to him (Amarjit Singh) and he signed the same in token of its correctness. He also stated that original receipt Ex. D3 is correctly written and has been signed by him. Similar statement was made by him regarding agreement Ex. D4. He deposed that this agreement was scribed by Deed Writer Jagdish Mittar and was read over to him (Amarjit Singh) and he signed the same in token of its correctness. Thus, Amarjit Singh has categorically admitted that these four documents Exs. D1 to D4 have been executed by him. Documents Ex. D1 and D2 are rent receipts of August and September, 1977 whereby Amarjit Singh received rent of the disputed shop from defendant Dalbir Singh. This rent was received two years prior to the creation of the mortgage vide mortgage deed dated 6.8.1979. These receipts thus prove that defendant was already tenant in the disputed shop prior to creation of the mortgage. Consequently, recital in the mortgage deed that possession has been delivered to the mortgagee pursuant to mortgage carries no weight. Here it is significant to notice that Amarjit Singh would neither create ante dated receipts Exs. D1 and D2 in favour of defendant nor would make false statement in favour of defendant regarding the said receipts because Amarjit Singh admitted that a suit had been filed against him by defendant Dalbir Singh regarding money of committees and the said suit for recovery was decreed and Amarjit Singh paid the decretal amount to defendant Dalbir Singh. In these circumstances, admission of Amarjit Singh regarding execution of receipts Ex. D1 and D2 is very significant and proves ante-mortgage tenancy of the disputed shop in favour of the defendant. 11. The aforesaid conclusion is further strengthened by receipt Ex. D3 and agreement Ex. D4. According to mortgage deed, out of mortgage money of Rs.10,000/- , mortgagor had already received Rs.5000/- and balance amount of Rs.5000/- was to be paid later on. Vide receipt dated 6.12.1979, defendant mortgagee paid the balance mortgage amount of Rs.5000/- to the mortgagor. On the same day, agreement dated 6.12.1979 Ex. D4 was also executed as admitted by Amarjit Singh himself. In agreement Ex. D4, it has been clearly recited that on redemption of mortgage, tenancy of defendant would revive at rent of Rs.175/- per month. Vide receipt dated 6.12.1979, defendant mortgagee paid the balance mortgage amount of Rs.5000/- to the mortgagor. On the same day, agreement dated 6.12.1979 Ex. D4 was also executed as admitted by Amarjit Singh himself. In agreement Ex. D4, it has been clearly recited that on redemption of mortgage, tenancy of defendant would revive at rent of Rs.175/- per month. In view of these admitted documents, there remains no doubt that defendant was already tenant in the disputed shop before creation of mortgage and that on redemption of mortgage, the tenancy of defendant was to stand revived. These documents Ex. D3 and Ex. D4 were executed about five years prior to the sale of the disputed shop in favour of the plaintiffs. So, these documents are not doubtful or suspicious in any manner. These documents are further corroborated by rent receipts Exs. D1 and D2. Combined effect of all these four documents is that the defendant was already tenant in the disputed shop prior to creation of the mortgage, and on redemption of mortgage, tenancy of the defendant was to stand revived. 12. In the case of Gambangi Appalaswamy Naidu (supra), Hon’ble Supreme Court has categorically laid down that intention of the parties whether tenancy is to revive on redemption of mortgage or whether the tenancy stood merged with mortgagee rights and would come to an end on redemption of mortgage is to be gathered from the transaction and conditions of the mortgage. In the instant case, intention of the parties i.e. Amarjit Singh mortgagor and defendant mortgagee is evident from documents Exs. D1 to D4 that on redemption of mortgage, the tenancy of the defendant was to stand revived. Consequently, in view of judgment of Hon’ble Supreme Court in Gambangi Appalaswamy Naidu (supra), on redemption of mortgage, the plaintiffs are not entitled to actual physical possession of the disputed shop. 13. Following substantial questions of law arise for determination in this second appeal. (1) Whether defendant was already tenant in the disputed shop prior to the creation of mortgage ? (2) Whether on redemption of mortgage, tenancy of the defendant would stand revived and plaintiffs/mortgagors are not entitled to actual physical possession of the disputed shop ? 14. For the reasons already recorded hereinbefore, both these substantial questions of law are answered in favour of the defendant-appellant. Resultantly, the instant second appeal is allowed. (2) Whether on redemption of mortgage, tenancy of the defendant would stand revived and plaintiffs/mortgagors are not entitled to actual physical possession of the disputed shop ? 14. For the reasons already recorded hereinbefore, both these substantial questions of law are answered in favour of the defendant-appellant. Resultantly, the instant second appeal is allowed. Judgments and decrees of the courts below are modified. Suit filed by the plaintiffs is decreed for redemption of mortgage of the disputed shop on payment of mortgage money of Rs.10,000/- to the defendant-mortgagee. However, the plaintiffs, on redemption of mortgage, would not be entitled to actual physical possession of the disputed shop and rather the defendant would continue in possession of the disputed shop as tenant. The parties are left to suffer their respective costs throughout.