ABDUL AZIZ Vs. KUBRABEE

JUDGEMENT

(1.) this is a defendant's second appeal against the concurrent findings of the courts below.

(2.) the plaintiffs brought the suit for redemption of mortgage said to have be encreated in the year 1970-71 in respect of certain premises being shop premises situate in bidar. The plaintiffs-mortgagers received Rs. 5,000/- from the defendant and executed a deed of possessory mortgage. In accordance with the terms of the deed of mortgage, he offered to tender the mortgage amount and sought redemption and possession of the property. The defendant did not oblige. Therefore, they filed the suit for redemption. The defendant resisted (he suit inter alia on the ground that though he was a mortgagee in possession from the date of the deed of mortgage and even prior to that date he was tenant and his tenancy was kept in abeyance during the subsistence of the mortgage and once the mortgage was redeemed his tenancy was revived and therefore he could not be evicted from the place by that court.

(3.) on that issue both the courts have recorded a finding that the mortgagee-defendant was not a tenant but his uncle was the tenant under a deed of lease executed by the plaintiffs in favour of the said uncle. That any business carried on by the defendant was only on behalf of the uncle. The mortgagee not being a tenant he could not plead that there was a revival of his tenancy on redemption. That finding is based on the evidence placed by the parties before the courts below. The evidence placed before the court by the defendant was certain receipts and factum that he had paid the tax and obtained telephone connection in his own name. These documents in themselves do not evidence or prove that he is a tenant though in certain circumstances they may be considered to be evidence of such a plea.