LACHMAN DAS Vs. HEERA LAL

JUDGEMENT

(1.) IT is a defendant's appeal against the decree of the lower appellate court. IT was first heard by a learned single Judge He lias referred it to a larger Bench, and it is now laid before us. Of the defendants Lachhman Das is the father, and the others are his sons.

(2.) THE dispute relates to a shop. It belonged to one Ganga Ram and his wife, Kiran Devi. On April 10, 1951, they made a usufructuary mortgage of the shop in favour of Lachhman Das. On January 3, 1957 they sold it to Sri Hira Lal, the plaintiff. Hira Lal deposited the mortgage-money in the court under Section 83 of the Transfer of Property Act (hereinafter called the Act) on January 8, 1957. Lachhman Das withdrew the money, but did not deliver possession of the shop to Hira Lal. He had taken several pleas in that proceeding. We are now concerned with only one of them. That plea was that before taking the usufructuary mortgage he was the tenant of the shop, and that despite redemption of the mortgage he was entitled to continue in possession of the shop as a tenant, On account of his objection the court did not deliver possession of the shop of Hira Lal. Hira Lal then instituted the suit which has given rise to this appeal. THE suit was for redemption of the mortgage and delivery of possession and also for mesne profits from January 8, 1957 to the date of delivery of possession at Rs. 100 per month.

(3.) THE defendants submitted to the decree, but the plaintiff filed an appeal. THE lower appellate court affirmed all the findings of the trial Court except the one regarding determination of the tenancy of the defendants. THE lower appellate court held that the defendants' tenancy merged in the usufructuary mortgage and came to an end. Accordingly the lower appellate court granted the plaintiff a decree for possession also.