KUNJU KUNJU Vs. ALEY

JUDGEMENT

(1.) IN a suit for redemption of mortgage the trial court passed a preliminary decree rejecting the tenancy right claimed by the defendant without referring the question to the Land Tribunal. Appellate Court confirmed the decree upholding the finding that defendant is not a tenant. Hence the defendant has come up in second appeal.

(2.) IT is not necessary to advert to the facts in detail since facts are not in serious dispute. Exts. A2 and A3 are the mortgage deeds of 1121. At the time of these two documents the property was outstanding on lease with a stranger. The mortgagees were directed to collect rent from the tenants and get possession from them. Accordingly they got possession. As to how the mortgagees got possession is a fact in dispute even though it is admitted that they got possession. Though they filed a suit it was dismissed If so possession could have been obtained only under some arrangement with the lessee. Equity of redemption devolved on the plaintiff and the right of the mortgagees devolved on the defendant.

(3.) FROM the judgment of the appellate court it appears that tenancy under both heads was raised. The claim under S. 4a was considered by the appellate judge in para 9 of his judgment and rightly found against. The claim based on revival of the earlier tenancy was considered in para 10 and the appellate judge rejected that contention on the finding that the mortgagee bad no intention to keep the leasehold 'interest alive. In my opinion this is a wrong finding. I shall give the reasons later.