M C VENKATESHAPPA Vs. K N SADASHIVAIAH

JUDGEMENT

(1.) THE appeal filed against the judgment and decree passed in R. A. No. 204/99 on the file of the Civiljudge (Sr. Dn.) Kolar, arising out of the judgment and decree passed in O. S. No. 6/95 on the file of the Addl. Civiljudge (Jr. Dn.), Malur. The appellant is the first defendant. Respondent/plaintiff filed a suit for redemption of mortgage and possession of the suit property. According to the plaintiff the suit property is mortgaged in favour of the defendant for a sum of Rs. 4000/- under registered mortgage deed. The plaintiff offered the amount and sought redemption, when the defendant refused, the suit came to be filed. The sum of Rs. 4000/- is also deposited before the trial. Court, Defendant contends that prior to the mortgage he was residing in the premises as a tenant on a monthly rent of Rs. 15/- and that by redemption his right to continue in the premises, as a tenant would not get extinguished in law. Therefore, resisted the claim of possession. The trial Court rejected the defence contention, decreed the suit. The first appellate Court confirmed the judgment and decree of the trial Court. Hence, the second appeal.

(2.) THE following substantial question of law is framed for consideration in this appeal : whether the finding of the appellate Court that the contract of mortgage has put an end to the contract of lease between the parties is bad in law and that the plaintiff is not entitled to the relief of possession in law?

(3.) THE appellate Court has referred to the Ruling of the Supreme Court AIR 2001 sc 2284 in Nirmal Chandra v. Vimal Chand. In the said decision it is laid down that during the continuation of tenancy if a contract of mortgage is created, the contract of lease would not get merged into contract of mortgage. On redemption the tenancy rights revives. The appellate Court comes to the conclusion that the: parties by their conduct had put an end to the contract of lease. Such a finding is contrary to the evidence on record. The terms of mortgage do not extinguish the leasehold rights. The mortgage deed recites the delivery of possession. But there is a clear admission by the plaintiff in his evidence that the defendant was residing as a tenant. There is no evidence to show that the parties have put an end to the contract, of lease at the time of mortgage. In that view of the matter, after redemption of mortgage the leasehold rights get revived. The question of law answered in the affirmative.