LACHHAMIN BAI Vs. AMBIKA PRASAD BHATT

JUDGEMENT

(1.) THE unsuccessful defendants have preferred this appeal being aggrieved by the judgment and decree dated 18-4-1991 passed in Civil Appeal No. 33-A of 1987 by the learned Additional Judge to the Court of the District Judge, Bilaspur, reversing the judgment and decree dated 21-3-1987 passed in the original suit No. 104/1982 by the learned Fifth Civil Judge, Class II, Bilaspur.

(2.) BRIEF facts necessary for the decision of the appeal are that the plaintiff who had mortgaged the suit premises with the defendants filed a suit for redemption. It is not in dispute between the parties that the property was mortgaged under a mortgage deed by the plaintiff in favour of the defendants. It is also not in dispute that the defendants were the tenants at the monthly rental of Rs. 2/- in the same premises. The defendants appeared after notice and contested the suit on all possible grounds. They also submitted that in case a decree for redemption is granted in favour of the plaintiff, they are entitled to recover the amounts spent by them in repairs, upkeep and betterment of the house as according to them all such repairs were necessary. After recording evidence and hearing the parties, the learned trial Court dismissed the suit. The plaintiff preferred first appeal. The learned first appellate Court passed a decree in favour of the plaintiff-respondent directing the defendants-appellants to restore possession of the property to the plaintiff with the further direction that the electric fittings which have been put by the defendants may be removed by them while delivering possession of the property to the plaintiff. The amount of Rs. 1,000/- deposited by the plaintiff in the proceedings under Section 83 of the Transfer of Property Act may be withdrawn by the defendants from the said Court. It is to be noted further that the trial Court did not pass a preliminary decree in accordance with Order 34, Rule 7, Civil Procedure Code but treating it to be a suit for possession, straightaway directed delivery of possession on payment of the said amount.

(3.) BEING aggrieved by the said judgment and decree, the defendants have preferred this appeal, which has been admitted by this Court on 25-9-1991 on the following substantial question of law :