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2016 DIGILAW 1661 (HP)

Chander Shakher v. Dharam Chand Shukla

2016-08-10

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J. The instant appeal stands directed against the impugned judgment and decree of the learned District Judge, Hamirpur, Himachal Pradesh, whereby, he, while modifying the judgment and decree of the learned trial Court whereby suit of the plaintiff stood dismissed, partly decreed vis-a-vis the suit for possession by way of redemption except the shop in question i.e. the shop shown in Tatima Ext.PW-2/A measuring 2.80 x 4.50 sq.mts. on payment of mortgage money of Rs.1500/- in favour of defendant No.1 or her legal representatives within 30 days. However, the plaintiff standing aggrieved by the rendition of the Learned District Judge concerts through the instant appeal to seek reversal of the judgment and decree of learned District Judge, Hamirpur. 2. The facts necessary for rendering a decision on the instant appeal are that the plaintiff had claimed a decree for possession by way of redemption of 1/32 share measuring 20.74 sq.mtrs. out of the land comprised in Khata No. 243, Khatoni Nos. 734 to 758, Kita 43 measuring 663.62 sq.mtrs. and 1/21 share measuring 19.29 sq.mts. out of the land comprised in Khata No. 242, Khatoni Nos. 728 to 733 measuring 405.23 sq.mtrs. as described in the Jamabandi for the year 1989-90 and more specifically described in head note of the plaint alongwith two shops and one room shown in the site plan Ext.PW-2/A by points ABCD measuring 2.85 x 4.50 Sq.mts. and another shop shown by points EFGH measuring 2.80 x 4.50 sq.mts. hereinafter referred to as the suit property on payment of mortgage debt/money of Rs.1500/-. The said reliefs had been claimed by the plaintiff on the ground that the plaintiff mortgaged the suit land alongwith the said shops in favour of defendant No.1 against mortgage money of Rs.1500/- vide mutation No.1000 sanctioned on 23.07.1980 with possession by delivering vacant possession of the suit property to defendant No.1. It was conditioned that on payment of mortgage money, the defendant No.1 was bound to hand over the vacant possession of the suit property in favour of the plaintiff. But the defendants No. 2 and 3 claimed themselves to be in possession of the shops as tenants of defendant No.1. It was conditioned that on payment of mortgage money, the defendant No.1 was bound to hand over the vacant possession of the suit property in favour of the plaintiff. But the defendants No. 2 and 3 claimed themselves to be in possession of the shops as tenants of defendant No.1. The defendant No.1 was never allowed and legally authorized by the plaintiff to create any tenancy over the suit property and as such she was not legally entitled to create any tenancy or interest in the suit property beyond the period of her interest and in case she created any interest in the suit property, the same has no effect on the rights of the plaintiff and the plaintiff is entitled to get vacant possession of the suit property as the defendant No.1 was not legally entitled to create any tenancy in favour of defendants No. 2 and 3. The plaintiff requested the defendants several times to receive mortgage money and deliver the vacant possession of the suit property by getting the mortgage redeemed but they refused to do so, as a result of which, he was compelled to file the suit and claimed the said relief. 3. The suit of the plaintiff was resisted by defendant No.4 Ashok Kumar and has taken preliminary objections qua maintainability, locus standi and cause of action. On merits, the averments made in the plaint were termed as wrong and pleaded that the plaintiff had inducted defendant No.4 as tenant in the year 1977 and he is paying rent to the plaintiff since then. The mortgage has been executed of the suit property by the plaintiff in favour of defendant No.1 to defeat his interest. The defendant No.4 is licence holder of the Municipal Council, Hamirpur in the suit premises on deposit of licence fee since 1977 till date and on the basis of said averments, the defendant claimed dismissal of the suit. 4. In the replication filed on behalf of the plaintiff the averments as contained in the plaint were reiterated and those of the written statement contrary to the plaint were refuted. 5. On the pleadings of the parties, the trial Court struck following issues inter-se the parties in contest:- (1) Whether the plaintiff is entitled for possession in respect of the land in suit by way of redemption of mortgage on payment of Rs.1500/- being mortgage money as prayed for? OPP. 5. On the pleadings of the parties, the trial Court struck following issues inter-se the parties in contest:- (1) Whether the plaintiff is entitled for possession in respect of the land in suit by way of redemption of mortgage on payment of Rs.1500/- being mortgage money as prayed for? OPP. (2) Whether the suit is not maintainable in the present form? OPD. (3) Whether the plaintiff has no locus-standi to file the suit? OPD. (4) Whether the plaintiff has no cause of action against defendant No.3, as alleged? (5) Whether the defendant No.3 is entitled to special costs under Section 35-A CPC, as alleged? OPD. (6) Whether the defendant No. 3 has been induced tenant by the plaintiff in the year 1977, as alleged? If so, its effect? OPD. (7) Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff besides the learned First Appellate Court partly allowed the appeal preferred therefrom before it by the plaintiff. 7. Now the plaintiff/appellant instituted the instant Regular Second Appeal before this Court, assailing the findings recorded by the learned first Appellate Court in its impugned judgment and decree. When the appeal came up for admission on 08.11.2006, this Court admitted the appeal on the hereinafter extracted substantial questions of law:- 1. Whether the finding of the first Appellate Court that respondent No.4 Ashok Kumar was inducted as tenant by way of an act of prudent management of the mortgaged property and as such he is to be treated as a tenant under the appellant-plaintiff even after the redemption of the mortgage, is contrary to the legal position? 2. Whether the finding of the First Appellate Court that respondent No.4 Ashok Kumar was inducted as tenant by the appellant/plaintiff prior to the creation of the mortgage is not supported by the evidence on record? Substantial questions of law No. 1 and 2 8. The successors-in-interest of Chaudhary Ram had qua the suit property detailed in the plaint instituted a suit for possession by way of redemption. The suit in its entirety stood dismissed by the learned trial Court. Substantial questions of law No. 1 and 2 8. The successors-in-interest of Chaudhary Ram had qua the suit property detailed in the plaint instituted a suit for possession by way of redemption. The suit in its entirety stood dismissed by the learned trial Court. In an appeal preferred therefrom before the learned First Appellate Court the latter modified the decree qua the suit land except the shop shown in Tatima Ext.PW-2/A measuring 2.80 x 4.50 Sq.mts., shop whereof is held purportedly as a tenant by defendant No.4 on payment of rent. 9. The decree in appeal rendered by the learned First Appellate Court would suffer the mishap of its standing reversed qua the contentious shop displayed in Ext.PW- 2/A measuring 2.80 x 4.50 Sq.mts. held purportedly as a tenant by defendant No.4 on forthright evidence upsurging in display of the evident fact of the relevant mutation comprised in Ext.P-6 holding revelations therein of the relevant shop occupied as a tenant by defendant No.4 also standing mortgaged by Chaudhary Ram vis.a.vis Pushpa Devi. The learned First Appellate Court had on a perusal of order of mutation No. 1000 comprised in Ext.P6 holding manifestation of the relevant shop standing mortgaged by the predecessor in interest of the appellant vis-à-vis his daughter one Pushpa Devi recorded a conclusion in tandem therewith. The aforesaid conclusion formed by the learned First Appellate Court is in tandem with the reflections occurring in Ext.P-7. A reading of the relevant order of mutation conjointly with the exhibit aforesaid validates the reasoning afforded by the learned First Appellate Court qua inter se compatibility occurring vis-à-vis the property enumerated in the relevant order mutation with the exhibits aforesaid exhibits whereof hold upsurgings of the relevant shop occupied purportedly as a tenant by defendant No. 4 also standing mortgaged by one Chaudhary Ram qua his daughter one Pushpa. 10. With this Court holding of the relevant shop purportedly held as a tenant by defendant No.4 standing mortgaged by Chaudhary Ram vis-à-vis Pushpa Devi his daughter, the prime factum qua defendant No.4 standing evicted therefrom at the stage contemporaneous to the attestation of the relevant order of mutation of mortgage whereafter the mortgagee Pushpa Devi acquired its vacant possession warrants determination. 11. 11. With Pushpa Devi instituting a petition for eviction of defendant No.4 from the demised premises, premises whereof constituted the relevant property which stood mortgaged by Chaudhary Ram qua his daughter Pushpa Devi is a forceful acquiescence of defendant No.4 holding its possession at the stage contemporaneous to the attestation of mutation of mortgage qua it besides his possession thereof continuing uptill the institution of a petition by Pushpa Devi seeking for his eviction therefrom. Sequelly hence the display in the relevant jamabandies besides in the relevant order of mutation qua its vacant possession thereafter standing delivered to the mortgagee is rudderless also its efficacy stands both undermined as also rebutted. Furthermore concomitantly the display in Mark A to Mark H qua defendant No.4 holding possession as a tenant of the relevant shop vis-à-vis whereof alongwith other property of Chaudhary Ram denoted in the relevant order of mutation, a, mortgage stood created thereupon by the aforesaid qua his daughter Pushpa Devi, stands inaptly concluded by the learned First Appellate Court to stand not legally proven whereas it constitutes fortifying evidence qua defendant No.4 holding its possession since 1977 upto the date of institution of a petition for eviction by Pushpa Devi before the learned Rent Controller wherein she staked a claim for eviction therefrom of defendant No.4. Since, Mark-A to Mark-H stand issued by the authority concerned also with theirs holding a vivid display of defendant No.4 holding possession as a tenant of the relevant shop qua which a mortgage stood created by Chaudhary Ram vis-à-vis his daughter one Pushpa Devi imminently hence when they emanated from official records qua which a presumption of truth is attached presumption whereof arises from theirs standing issued by the authorities concerned in the performance of official duties, presumption whereof though rebutable by adduction of cogent evidence qua reflections therein holding a fictitious display, rebuttal evidence whereof stood unadduced, it was grossly improper for the learned First Appellate Court to undermine their efficacy. Consequently, with Mark-A to Mark-H succoring the deposition of DW-4, of, Chaudhary Ram leasing the relevant shop in the year 1977 to defendant No.4 when read in coagulation with the mortgagee Pushpa Devi acquiescing qua defendant No.4 holding its possession inference of acquiescence by her qua the factum aforesaid stands hinged upon the trite factum of hers instituting a petition before the learned Rent Controller seeking his eviction therefrom, fosters an amplifying conclusion of the relevant manifestations occurring in the relevant order of attestation of mutation of mortgage occurring in Ext.P-6 also occurring in Jamabandi Ext.P-7 qua possession of the relevant shop standing at the time contemporaneous to the attestation of the relevant mutation of mortgage delivered to Pushpa Devi, hence standing rebutted. With the tenancy of defendant No.4 in the relevant shop occurring in 1977 whereat it stood unmortgaged by Chaudhary Ram obviously would though render the relevant shop to be amenable to a rendition qua it of a decree for redemption yet a decree for its possession vis-à-vis Chaudhary Ram the mortgagor and on his demise qua his successors in interest is unrenderable predominantly when the mortgagor prior to his subjecting it to mortgage his creating thereupon a tenancy vis-à-vis qua defendant No.4 also with the latter evidently for reasons aforesaid uptil date continuing to hold its possession, concomitantly foists in him a subsisting enuring right to protect it dehors a decree being rendered qua its standing freed from the clog of mortgage. The aforesaid conclusion obviously does not baulk this Court to conclude of the refusal by the learned First Appellate Court to render a decree of redemption qua it being inapt. The ensuing sequel for reasons aforestated is of a decree of possession qua it being unrenderable upon defendant No.4 who extantly hold its possession. Consequently, the decree of the learned First Appellate Court refusing to redeem the relevant shop from the clog of mortgage stands modified. Consequently, the relevant shop is decreed to be redeemed on payment of mortgage money of Rs.1500/- if not already paid. However, no decree is rendered upon defendant No.4 to yet deliver its vacant possession to the successors in interest of the hitherto mortgagor Chaudhary Ram. 12. Consequently, the relevant shop is decreed to be redeemed on payment of mortgage money of Rs.1500/- if not already paid. However, no decree is rendered upon defendant No.4 to yet deliver its vacant possession to the successors in interest of the hitherto mortgagor Chaudhary Ram. 12. The summum bonum of the above discussion is of defendant No. 4 holding possession as a tenant of the relevant shop prior to its standing put to mortgage by the predecessor in interest of the appellant/plaintiff wherefrom an inference stands enhanced of the mortgagee not as an act of prudent management during the subsistence of the mortgage inducting defendant No. 4 as a tenant therein. As a corollary, the reliance placed by the learned counsel for the appellant upon a judgment of the Delhi High Court reported in Puran Chand and Co. vs. Ganeshi Lal Tara Chand and others AIR 1988 Delhi 1, relevant paragraph 50 whereof stands extracted hereinafter:- “In conclusion, our answer to the reference is that the tenant inducted by a mortgagee in possession cannot claim the benefit of the protection afforded by the Rent Control Legislation after the redemption of the mortgage, unless the mortgagor had permitted the mortgagee to induct a tenant even beyond the term of the mortgage or has concurred to the creation of the lease or has adopted it.” to foster an espousal of with defendant No.4 standing inducted by the mortgagee as a tenant in the relevant premises also given the evident uncontroverted factum of the suit property standing located within the domain besides precincts wherewithin the learned Rent Controller exercises jurisdiction renders him de-facilitated to on the relevant shop standing freed from the clog of redemption stake any vested right vis-à-vis his tenancy thereunder yet enuring or subsisting, is grossly inapt, contrarily the defendant No.4 for reasons aforesaid is not disabled to stake any claim qua his tenancy qua the demised premises both subsisting besides enuring even when the suit property stands freed from the clog of mortgage or when it stands redeemed. Reiteratedly, when the tenancy of defendant No.4 qua the suit premises owes its genesis to an era when it was free from any encumbrance of mortgage also when his tenancy stood created by the mortgagor one Chauhdary Ram also when from 1977 uptill date he holds its possession besides when its possession stood undelivered to the mortgagee he stands bestowed with a right to attorn to the successors in interest of Chaudhary Ram. 11. For the foregoing reasons, the substantial questions of law are answered against the appellant/plaintiff. Nonetheless the appeal is partly allowed qua the decree of the learned First Appellate Court qua its holding of the relevant shop being not amenable for a rendition of a decree of redemption is setaside. However, defendant No. 4 is not amenable to a rendition of a decree qua his delivering its vacant possession to the appellant. Decree sheet be prepared accordingly. The parties are left to bear their own costs. All the pending applications also stand disposed of. Records be sent back forthwith.