SONA DEVI JAIN Vs. OMPRAKASH SHARMA

JUDGEMENT

(1.) Being aggrieved by the judgment and decree dated 28/3/1990 passed in Civil Appeal No. 32-A/88 by the Court of Second Additional District Judge, Tikamgarh arising out of judgment and decree dated 5/9/1984 passed in Civil Suit No. 22-A/84 by the First Civil Judge Class-II, Tikamgarh, the appellants/plaintiffs preferred this appeal.

(2.) The plaintiffs filed the suit against the defendant/respondent for redemption, recovery of possession of shop No. 12 situated in ward No. 1 Tikamgarh and for mesne profit on these grounds that the plaintiffs took the loan of Rs. 2,000.00 from the defendant and they mortgaged the above mentioned property with the defendant. The mortgage deed is a registered document. The plaintiffs created usufructuary mortgage in favour of defendant by giving possession of the disputed shop to him. It was agreed upon between the parties that the defendant shall pay Rs. 50.00 per month as rent after deducting Rs. 20.00 per month of interest. The property was mortgaged for three years and thereafter, the plaintiffs were at liberty to repay Rs. 2,000.00 to the defendant and take back the possession of the disputed shop. There was no relationship of landlord and tenant between the parties. The defendant failed to pay the rent subsequently. A notice was served on defendant and the amount of Rs. 2,000.00 was paid but, the defendant refused to take that amount. Therefore, the suit for redemption of the property, recovery of possession and mesne profit was filed.

(3.) The defendant's plea was that no deed of usufructuary mortgage was executed between the parties. Before the execution of mortgage deed, the defendant was in possession of the disputed shop as tenant and he was paying the rent since beginning. Only symbolic possession was taken by the defendant after execution of the document. The defendant was tenant of the plaintiffs and he was always ready to pay the rent of disputed property but, the plaintiffs wanted to raise the rent from Rs. 70/- to Rs. 100/- and they were also asking a loan of Rs. 10,000/- but when he refused, the plaintiffs filed this suit.