YAMUNA Vs. BHAVANI

JUDGEMENT

(1.) The civil revision petition has been filed by the plaintiffs in O.S. No. 302 of 1983 challenging the order of the court below refusing amendment to the plaint.

(2.) I shall refer to such allegations are relevant to the present purpose. The respondent is in occupation of the plaint schedule property, which is the ground floor of a double-storeyed building, with its appurtenant land. This property originally belonged to one Datta Shetty, the husband of the revision-petitioner. Datta Shelly died in April 1980. Petitioners are the legal heirs of deceased Datta Shetty. After the death of Datta Shetty petitioners filed a rent control petition for eviction of the respondent. The respondent contended that she was not a building tenant and was a mortgagee in possession as per an agreement executed by deceased Datta Shetty on 5-5-1977 and that the agreement was for a period of 5 years. The Rent Control Court dismissed the eviction petition. The petitioners preferred an appeal before the Appellate Authority challenging the order of the Rent Control Court. That R. C. A. was dismissed on the ground that the respondent was in possession of the building under a mortgage and that the period of mortgage has not expired. The revision-petitioners waited for the expiry of 5 years and filed the present suit. In the plaint the nature of rights of both parties are mentioned and the suit is styled as a suit for redemption of mortgage. The respondent filed written statement and contended that the mortgage sought to be redeemed by the plaintiffs is only a unregistered agreement and not a mortgage at all, and therefore a suit for redemption would not lie. Both parties adduced evidence in the case and the case was taken up finally for disposal. Meanwhile the plaintiffs filed application for amendment of the plaint to convert the suit to one for recovery of possession on the strength of title. This application was dismissed by the court below.

(3.) The learned counsel for the revision - petitioner contended that the suit in effect was for recovery of possession of the property held by the defendant and a suit for redemption was filed only because the defendant claimed that she was a mortgagee in respect of the property. The title of the petitioners was not disputed, and the amendment now sought for is only formal and the nature and character of the suit will not be changed. The counsel for the respondent contended that the suit is purely for redemption of the mortgage and since the mortgage deed was not registered, the suit itself is not maintainable. Therefore the same cannot be converted into one for recovery of possession on the strength of title. It was also contended that the cause of action for the suit for redemption is quite different from the cause of action in a suit for recovery of possession on the strength of title. In the latter case the plaintiff would be invoking a larger right, whereas in the former the cause of action arised from the terms of the mortgage.