DEVI AMMA Vs. SYAMALADEVI

JUDGEMENT

(1.) The defendants in O.S No. 554/2000 of Munsiff Court, Kozhikode are the appellants. Suit was one for redemption. Subject matter involved in the suit is a building. The Trial Court decreed the suit in part declining the redemption canvassed for, but, permitting the plaintiff to realise the surplus profits as due from the defendants. As against the declining of the redemption, plaintiff preferred an appeal before the District Court and the present appellant, another appeal as against the decree granted in favour of the plaintiff for realisation of the surplus profit as due from them. Both the appeals, after being heard together, were disposed by the learned District Judge, Kozhikode by a common judgment. The appeal preferred by the plaintiff was allowed and that of the defendants/appellants was dismissed. The appellants have preferred two appeals as against the decision so rendered under the common judgment by the lower appellate court and the present appeal emerges from the decree of redemption granted by that court in favour of the plaintiff allowing her to get possession of the building from the appellants/defendants. Admittedly, the present appellants have preferred an appeal as R.S.A. No. 1323/2005 as against the dismissal of their appeal by the lower appellate court, which was filed against the decree granted by the Trial Court with respect to the money claim, surplus profits sought for, by the plaintiffs in the suit. That appeal, R.S.A. No. 1323/2005, was dismissed by this Court by judgment dated 5.1.2006.

(2.) What is the impact of the dismissal of R.S.A No. 1323/2005 as against a part of the decree passed in the suit in favour of the plaintiff, in the pending appeal preferred by the defendants challenging the decree of redemption is the question that has to be considered first before going into the substantial questions of law, which have been formulated for consideration in the appeal. If it is found that the dismissal of R.S.A No. 1323/2005 would preclude this Court from entertaining the present appeal R.S.A No. 1304/2005 on the merits, then, needless to state, it is unnecessary to examine the substantial questions of law formulated for examining the decree passed by the courts below. Plaintiff has claimed redemption of the subject matter, the building, on the basis of A1 registered mortgage deed executed by the predecessor of the defendants. That deed contained a provision enabling the mortgagor to collect a sum of Rs. 175/- each month from the mortgagee as surplus profit during the subsistence of the mortgage. That amount due from the mortgagee is in arrears was the case of the plaintiff for a money decree of such surplus profits when the suit was instituted for redemption of the property. Resisting the suit claim, the defendants have contended that A1 mortgage deed was a product of impersonation and no such mortgage was, obtained by their predecessor and their occupation over the building was under an oral lease subject to liability to pay a monthly rent of Rs. 175/-. Disputing the status of the mortgagor -mortgagee relationship over the building, the defendants contended that they are lessees of the building entitled to the protection from eviction covered by Act 2 to 1965. So, essentially, the decree granted by the Trial Court towards surplus profits was based on an adjudication of the question whether the defendants are in occupation of the building as mortgagees or lessees. The Trial Court, though granted the money claim of the plaintiff as surplus profits, it is seen, it was granted after entering a finding that the defendants are in occupation as lessees of the building, as contended by them. So much so, the money claim allowed as surplus profits, was essentially treated by the Trial Court as arrears of rent. However, the lower appellate court, in the appeals preferred by the rival sides, after going through the materials tendered in the case, differing from the conclusion drawn by the Trial Court, held that the plaintiff is entitled to redeem the mortgage property and a decree, accordingly, was granted in their favour. So far as the challenge raised by the defendants impeaching the decree granted by the Trial Court for the money claim in favour of the plaintiff, that was turned down and it was held that such claim awarded was due to the plaintiff as surplus profits as covered by A1 mortgage deed. When such be the case, the dismissal of one of the two second appeals filed by the appellants impeaching the correctness of some findings which were rendered in common in both the appeals by the lower appellate court, no doubt, would constitute res judicata barring the consideration of the other appeal though it is preferred against a part of the decree, not challenged in the appeal which had been dismissed.' Learned Counsel for the appellant submitted that the appeal R.S.A. No. 1323/2005 was dismissed after taking notice of the pendency of the present appeal R.S.A. No. 1304/2005 and as such, its dismissal can have no effect in deciding the present appeal on its merits. The definite contention canvassed by the appellants as could be seen from the judgment rendered in R.S.A. No. 1323/2005 was that the money claim granted by the lower appellate court could be treated only as arrears of rent and not as surplus profit based on Al mortgage. When that case had been repelled by dismissal of their appeal, it follows that this Court had approved and confirmed the finding made by the lower appellate court that the defendants are in occupation of the building as mortgagees under A1 mortgage and as such bound by the terms of that deed and are liable to pay surplus profits to the mortgagor. That being so, the dismissal of R.S.A No. 1323/2005, even assuming for arguments sake, that was done without noticing its effect in the present appeal, the inevitable consequences will follow precluding further consideration of this appeal on its merits as the disputed issue involved over the occupation of the building by the defendants is sealed with finality. The appellants are in occupation of the building under A1 mortgage deed and their status is only as mortgagees is concluded by the decision rendered by this Court in confirming the finding of the lower appellate court on surplus profits due under Ext.A1, by the dismissal of the appeal preferred by the appellants in R.S.A No. 1323/2005. So much so, the present appeal, R.S.A No. 1304/2005 is only to be dismissed. Appeal is dismissed directing bom sides to suffer their cost.