PRASANNA KUMAR Vs. KEDARLAL AND OTHERS

JUDGEMENT

(1.) APPELLANT /defendant has preferred this appeal aggrieved by the impugned judgment dated 25 -1 -1997 passed by Additional District Judge, Sheopurkalan in civil suit No. 9 -A/89 whereby the suit of the respondents/ plaintiffs for redemption has been decreed. The facts of the case in brief are that plaintiffs and defendants No. 7 to 9 mortgaged their house situated at Shivpuri road Town, Sheopur for a loan of Rs. 20,000/ - vide registered deed dated 1 -1 -1974. The house comprises of four shops and a hall. Manikchand has died. Respondents No. 8 to 16 are the legal representatives of Manikchand. The main conditions of the mortgage deed were that the house is mortgaged for a period of four years. The house is to be redeemed in this period after the payment of the principle amount and the interest i.e. at the rate of interest 1.5 paisa per month which amounts to Rs. 300/ - per month. The rent which is to be fetched by the property shall be adjusted in the interest. Remaining interest will be payable per month. The rent of the hall which is Rs. 110/ - shall be adjusted towards interest. The rent accruable from the four shops will be adjusted towards interest. Meelabchand is a tenant in two shops at the rent is Rs. 30/ - per month. The mortgagee shall be entitled to realize the rent from him and the rent note shall be executed in favour of the mortgagee and the mortgagor shall get the rent note executed. The mortgagee shall be entitled to recover the arrears of rent by filing a suit and shall also be entitled to rent the premises to other persons. Gulabchand died on 2 -1 -1985 and the defendants No. 2, 3 and 4 are legal heirs of Gulabchand. The plaintiffs and defendants No. 7 to 9 have entered into an oral partition whereby mortgaged property has fallen into the share of the plaintiff alone. The plaintiff has informed the defendant No. 1 Dulichand and the late Gulabchand vide registered letter No. 91 dated 16 -1 -1975 which was received by them on 17 -1 -75. The defendants No. 7 to 9 being necessary parties are made proforma defendants in the suit.

(2.) THE rent of the hall was fixed at the rate of Rs. 110/ - per month by Dulichand and Gulabchand themselves vide the mortgage deed. The mortgagees are also realizing the rent of the four shops. The two shops are with the defendant No. 9 and the other two shops are with the defendant No. 10 Manikchand on rent. The rent of the hall has been agreed to be enhanced to Rs. 500/ - per month. The defendants have rented the two shops of Meelabchand to Manikchand at the rate of Rs. 50/ - per month. The defendants are in the business of money lending. They are neither sending the annual accounts nor are keeping separate accounts required by the Money Lending Act. The defendants No. 1 to 6 and the deceased Dulichand are not entitled to the interest for which the record is not kept as per the provisions of the Money Lending Act and for that period the rent of the hall and of the shops is liable to be adjusted in the principle amount. The defendants are not entitled to realize the rent more than at the rate of Rs. 9% per annum. Plaintiff is ready to realize the amount legally recoverable from him to the defendants No. 1 to 6. The plaintiff is also entitled to the vacant possession of the hall and the four shops on redemption. Plaintiff asked the defendants No. 1 and 2 to redeem the property after taking reasonable amount. They did not agree to the request and plaintiff filed the suit. Defendants No. 2 and 3 submitted their joint written statement. They admitted the fact of the situation of the mortgaged property and conditions of the mortgage deed. They submitted that an immovable property can only be partitioned by a registered deed and not by an oral partition. The property was built by plaintiffs father Manikchand and property was not an ancestral property. Thus, the partition between the plaintiff and the defendants No. 7 to 9 is not permissible. The partition was refuted. They further submitted that shops which are said to be with Kailashchand were in fact rented out by all the mortgagors and the rent of these shops has not been paid by the mortgagors. The mortgagees were required to adjust the rent at the rate of Rs. 110/ - per month of the hall and the rent of Rs. 30/ - payable by Meelabchand. The mortgagors were further required to pay Rs. 160/ - per month as interest which was not paid by them. The defendants denied that the rent of the hall was agreed to be fixed at Rs. 500/ - per month. Meelabchand's brother Manikchand is presently running a utensils business in Meelabchand's shops. Defendants No. 2 and 3 specifically and expressly denied that they are in the money lending business and submitted that the defendants firm obtained the go -down (hall) from the mortgagors on rent prior to the mortgage deed owing to the necessity arising out of the business. Defendants further submitted that the provisions of the Money Lending Act does not apply to them. The amount of Rs. 140/ - obtained by way of rent was adjusted in the loan and the defendants are entitled to get the interest at the rate of Rs. 1.5% per month after adding the balance interest amount in the principal amount. Defendants also submitted that the mortgagees have incurred an expenditure of Rs. 3859/ - in the maintenance of the building and is entitled to realize it from the mortgagors as per the mortgage deed. The defendants submitted that plaintiff can redeem the property after the payment of Rs. 3,23,645/ - calculated in the light of the above mentioned facts. After the redemption, the mortgagors are entitled to get only the symbolic possession of the property and not the actual possession. The defendants submitted that a preliminary decree may be passed after calculating the amount recoverable from the mortgagors in the light of the facts mentioned by them.

(3.) DEFENDANT No. 8 Manikchand also submitted his written statement. He admitted that he is a tenant in two shops at the rate of Rs. 50/ - per month is in the property but denied that the plaintiff is entitled to get the vacant possession of the disputed shops. He pleaded ignorance in respect of the remaining averments. The remaining defendants did not submit their written statement. Learned trial Court framed issues. On 5 -8 -96 plaintiff submitted an application that since the defendants No. 1 and 2 consented for a preliminary decree vide their written statement, a preliminary decree may be prepared in the matter. The defendants No. 1 and 2 opposed the application by submitting their written reply. They submitted that the objections raised by the defendants are to be decided first, then preliminary decree may be passed in the matter. The learned trial Court after hearing the arguments of both the parties, allowed the application and decreed the suit and passed a preliminary decree on 25 -1 -1997 without recording the evidence about the entitlement of the plaintiff to redeem the suit property. Aggrieved by the impugned judgment and decree, appellant/defendant preferred this appeal on the grounds that impugned judgment and decree is incorrect and legally untenable. Learned trial Judge has fallen in error in not properly following the scope of the provisions contained in Order 34 of Civil Procedure Code. This provision empowers the Court to pass a preliminary decree only after adjudicating upon the entitlement of the plaintiff to redeem the property from mortgage. Plaintiff claimed a right to redeem the property on the basis of an alleged oral partition. The factum of partition was denied by the defendant/appellant. Therefore, the trial Court had raised issue No. 1 on this point and without deciding the issue, passed a preliminary decree. The learned trial Court did not resolve the factual controversy between the parties. Therefore, the learned trial Court erred in law in passing the impugned judgment and decree without recording the evidence. Learned trial Court erred in decreeing the suit of possession while respondent No. 1 is not entitled to actual possession but in case of success, he will be merely entitled to symbolic possession. Learned trial Court erred in this respect also. The impugned judgment and decree passed by learned trial Court is perverse and illegal. He prayed to allow the appeal and set -aside the impugned judgment and decree and remand the case to the trial Court.