ABDUL JABBAR Vs. SHANKAR RAO

JUDGEMENT

(1.) The plantiff in OS.640 of 1972 on the file of the Prl First Munsiff, Mysore, is the appellant in this second appeal. He instituted the said suit for redemption of an usufructuary mortgage created by him under the mortgage deed dt.30-4-1967 in favour of the defendant for a sum of Rs.1500.

(2.) The defendant did not dispute the right of the plaintiff to redeem the mortgage. The principal contention urged by him before the trial Court was that since he was a tenant in possession of the mortgaged property, which happened to be a building, on a monthly rent of Rs. 15 prior to the date of the mortgage, he was not bound to surrender the possession of the building on the redemption of the mortgage as the said tenancy which was only in abeyance during the subsistence of the mortgage would revive after redemption. The trial Court upheld the contention of the defendant and passed a decree for redemption of the mortgage with the condition that the plaintiff would not be entitled to the possession of the premises in question.

(3.) It also held that in the event of the above finding being reversed by the appellate Court, the plaintiff would be entitled to damages at the rate of Rs.30 per month from the date on which the mortgage amount was deposited into the Court in accordance with the preliminary decree. Accordingly he passed a preliminary decree in the suit. Aggrieved by the said preliminary decree, the plaintiff preferred an appeal in RA.30 of 1974 on the file of the Civil Judge, Court of Small Causes, Mysore. The lower appellate Court affirmed the decree of the trial Court refusing the prayer of the plaintiff for actual possession and damages. It, however, decreed that the mortgage stood redeemed as the plaintiff had deposited the mortgage money on 18-9-1972 and directed the defendant to return the mortgage deed to the plaintiff with the endorsement of satisfaction. Aggrieved by the decree of the lower appellate Court the plaintiff has filed this second appeal.