THAKAR SINGH Vs. MULA SINGH

JUDGEMENT

(1.) In this Civil Appeal an interesting question arises for decision. One Nand Singh and Dr. Thakar Singh filed a suit for recovery for possession of various shops cum vacant sites situated in the main Bazar of Moga Town against 14 defendants. The suit property had been mortgaged to one Suba Singh and Saudagar Singh, defendants 1 and 2, for a sum of Rs.26,000/- vide registered mortgage deed dated 9th March 1942. After taking an additional amount of Rs.3,000/- from the aforesaid Suba Singh and Saudagar Singh, the plaintiffs executed an additional registered mortgage deed dated 3rd March 1943. The material terms of the mortgage deed dated 9th March 1942, with which we are concerned, reads as follows:

(2.) On 25th August 1969, the plaintiffs redeemed the mortgaged properties by depositing a sum of Rs.29,000/- . The cause of action for filing the present suit arose on account of the fact that physical possession of the suit property was not handed over to the plaintiffs even after the redemption of the mortgaged property. The defendants 1 and 2 are said to have rented out portions of the suit property to defendants 3 to 14. Since the defendants failed to deliver possession, the plaintiffs filed a suit for possession and recovery of damages. In the Trial Court, a number of issues were struck between the parties. In the present appeal, we are concerned basically with Issue 4, which reads as under:

(3.) Learned counsel for the appellants raised a two-fold contention before us. Firstly, a correct reading of the two mortgage deeds would only lead to the conclusion that on redemption all tenancies created by the mortgagees would cease to have any effect and would not be binding on the mortgagors. Alternatively, it was also argued that if it were found that on a true construction of the mortgage deed the mortgagors' right to redeem was in fact clogged such clog would not be countenanced by the courts and full effect of redemption including the right to take back possession of the mortgaged property free from all encumbrances would ensue. Learned counsel for the respondents basically supported the judgment under appeal and argued that it was clear from a reading of the mortgage deed that the mortgagors had in fact recognized tenancies created by the mortgagees and therefore the present suit would not be maintainable - the mortgagors have to go to a Rent Court to make out some ground of eviction against tenants recognized by them.