MUNNI LAL Vs. PHUDDI SINGH

JUDGEMENT

(1.) This is plaintiff's appeal directed against the trial court's decree dt. Jan. 1, 1972 passed under O.34, R.4, Civil P.C. in original Suit No. 152 of 1969.

(2.) The defendant executed a mortgage under registered instrument in plaintiff's favour on Jan. 7, 1961 in respect of the property detailed at the foot of the plaint. The consideration was Rs. 23,000.00 repayable with interest at the rate of 12% per annum within a period of four years. For the payment of interest the mortgage stipulates that the mortgagee would be entitled to realise Rs. 102/- per month being the rent from three tenants in the shops referred to as Items 1, 2 and 3 respectively in the Schedule 'A' appended to the deed of mortgage. In case the mortgagee is put in possession over the land referred to in Schedules 'B' and 'C', he was to be deemed to be a tenant in respect thereof on rent at the rate of Rs. 58/- and 40/- respectively. A sum of Rs. 128/- per month was thus to be set off towards interest. The contention of the plaintiff is that he was not put in possession over the land in Schedules 'B' and 'C'. The defendant, according to him, obstructed in the realisation of rent regarding the property in Schedule 'A' as well. Over the shop mentioned as Item 1 in Schedule 'A' the plaintiff got possession in July 21, 1964 in Original Suit No. 639 of 1962 filed by him against the tenant and over the shop mentioned as Item 2 in this Schedule he could obtain possession only in May 1965. He did not get possession aver any land in respect of Item 3 of this Schedule. The relief claimed in the suit is the recovery of sum of Rs. 69,222.65 (including Rs. 4,000/- claimed to be spent in litigation concerning the property mortgaged) and, if necessary, sale of the mortgaged property for realisation of the amount.

(3.) In defence it is asserted that the mortgage was usufructuary. The entire amount including the principal was to be satisfied by the usufruct. The mortgagee was not entitled to compound interest. It is refuted that the defendant at any stage obstructed in the realisation of the rent. The plaintiff mortgagee obtained possession over Items I and 2 of Schedule 'A' and the defendant is entitled to be recompensed by occupation rent in respect thereof in addition to the accounting for the rent realised or which could not have been realised in the ordinary course by the plaintiff as mortgagee.