BHANSHALI KUSHALCHAND RAMJI Vs. SHA SHAMJI JIVRAJ

JUDGEMENT

(1.) THIS revision application under paragraph 35 of the Kutch Province (Courts) Order, 1948, arises out of a suit for partition. The only question falling for consideration is whether the applicant-plaintiffs are entitled to recover actual possession of the Vakhar (shop) in suit. This property and another shop had been originally mortgaged with possession by the plaintiffs' uncle Laxmichand Jutha with the first defendant Shamji Jivraj on Jeth Vad 30 of Samvat year 1989 for 5000 Koris and, on taking accounts of the mortgage, 7700 Koris were found due to the mortgagee towards which the plaintiffs paid 7000 Koris and for the balance of 700 Koris and for a cash consideration of 300 Koris, in all 1000 Koris, the plaintiffs mortgaged with possession the suit shop with the said defendant 1 by a deed of mortgage dated Vaishak Sud 4 of Samvat year 2001 and this is referred to in this suit as the first mortgage. By a second possessory mortgage the plaintiffs mortgaged the shop to defendants 2, 3 and 4 for Rs. 1000/- by a deed of mortgage dated Chaitra Sud 13 of St. year 2008 corresponding to 8-4-52 (Ex. 20 ). However the said defendants 2, 3 and 4 were in possession of the suit shop from Samvat year 1994, that is to say, from prior to the date of the first mortgage and the deed of mortgage, Ex. 20, recites the fact of their possession as tenants. The document also says that the defendants were at liberty to redeem the first mortgage on payment of the sum due to the first mortgagee Shamji Jivraj (defendant 1) and that the mortgagors will redeem the second mortgage on payment of the sum due to defendants 2, 3 and 4 together with whatever sum the said defendants might have paid for redemption of the first mortgage. The plaintiffs served the defendants with a notice for redemption and thereafter brought the present suit for redeeming both the mortgages.

(2.) BY their written statements the defendants agreed that the property may be redeemed on payment of whatever sum was found due on the two mortgages, and in addition defendant 1 claimed Rs. 296-15-0 for the cost of repairs etc. , incurred by him on the property. Defendants 2, 3 and 4 contended that since they were tenants of the property from before the date of the two mortgages they were entitled to the benefit of the Bombay Rent Act and were not liable to deliver actual possession to the plaintiffs even after the redemption and that the plaintiffs may be awarded symbolical possession of the property only.

(3.) THE learned trial Judge decreed redemption of both the mortgages and also awarded Rs. 296-15-0 to defendant 1 for the cost of repairs. He held that as defendants 2, 3 and 4 were in possession as tenants of the shop in question they were entitled to continue in possession thereof and the learned Judge therefore awarded symbolical possession to the plaintiffs. In appeal the learned Additional District Judge concurred with this finding of the Subordinate Judge, and held that Clauses (d) and (e) of Section 111 of the Transfer of Property Act, on which reliance was placed by the plaintiffs, had no application to the proved facts of the case. A new contention was urged in the appeal, viz. , that the Bombay Rent Act was not duly applied to Bhachau where the property is situate and therefore defendants 2, 3 and 4 could not claim the benefit of the said Act. The learned Judge rejected this contention holding that the Bombay Rent Act did apply to the present case, and in the above view he dismissed the appeal with costs.