HARBANS LAL Vs. JAGTAR SINGH

JUDGEMENT

(1.) JAGTAR Singh filed suit for possession by redemption of shop shown in letters A, B, C, D in Red in Plan Exbt. P-1 attached to the plaint situated at Railway Road, Zira against Harbans Lal on payment of Rs. 10000/- or such other sum which the Court might find payable to the latter. It is alleged that on 6.9.1988, Jagtar Singh mortgaged with possession shop with the defendant for a sum of Rs. 3000/- and actual physical possession of the shop was delivered to the defendant. It was a usufructuary mortgage at any time. Vide agreement dated 5.1.1989, plaintiff further received a sum of Rs. 4000/- from the defendant as mortgage money. Defendant further paid Rs. 3000/- to the plaintiff as mortgage money some time after the execution of the mortgage deed. Shop in dispute is thus under mortgage with defendant for a total sum of Rs. 10000/-.

(2.) HARBANS Lal-defendant contented the suit of the plaintiff urging that the defendant is entitled to remain in possession of the shop even after redemption as tenant of the plaintiff as he was in possession of the shop in dispute as tenant under the plaintiff even before creation of mortgage. He was in possession of the shop as tenant under the plaintiff since February, 1985 at a rental of Rs. 400/- per month. Prior to this suit, the plaintiff filed ejectment application on 14.5.1994 in the Court of Rent Controller, Zira alleging that defendant is a tenant over the shop in dispute which was dismissed as withdrawn on 26.10.1994. On 6.9.1988, the plaintiff was in need of money and he mortgaged the shop to the defendant for Rs. 3000/-. Thereafter, the plaintiff received a sum of Rs. 4000/- and 3000/- from the defendant as mortgage money. After redemption, the defendant will revert as tenant of the shop under the plaintiff at a rental of Rs. 400/- per month.

(3.) CIVIL Judge (Junior Division), Zira decreed the plaintiff's suit for possession through redemption against the defendant on payment of Rs. 10,000/- to the latter as mortgage money in view of his findings that this shop was mortgaged with possession with the plaintiff and the mortgaged amount was Rs. 10000/-. Plea of the defendant that he was a tenant of the shop prior to the creation of the mortgage did not find favour with the Court and this plea was negatived.