GOBIND RAM Vs. RAJPHUL SINGH

JUDGEMENT

(1.) THIS appeal has been filed against the judgment and decree of the Additional district Judge, Rohtak, by which a preliminary decree for redemption was passed by the Subordinate Judge, First Class, Rohtak, in favour of plaintiff-respondent no. 1.

(2.) BRIEFLY the facts of the case are that Rajphul Singh was the owner of the property in dispute which is comprised in shop No. 426 and half share of shop no. 427. He mortgaged the said property with Gobind Ram by means of registered mortgage deed dated March 27, 1959, for a consideration of Rs. 7,500/ -. The mortgagee was given the actual possession of the northern portion of shop bearing No. 426 which has been shown in the plan by letters 'abcd'. The actual physical possession of the remaining portion of shop No. 426 could not be given as one Chaman Lal was a tenant in that shop under the plaintiff and similarly the possession of half portion of shop No. 427 could not also be given as defendant no. 5 Raghu Nath was a tenant therein. These tenants, however, attorned to the mortgagee. The relevant condition regarding redemption was that the plaintiff could redeem the property after one year and within a period of ten years from the date of registration. Another relevant clause in the deed was that in case of redemption if the mortgagee could not deliver the actual physical possession of the northern portion of shop No. 426, then he would be deemed to be a tenant in that shop on payment of a rent of Rupees 16/-per mensem and the mortgagor's debt would be deemed to be reduced to the extent of Rs. 2,800/ -. In other words, the whole of the property could be redeemed on payment of Rs. 4700/-but the mortgagee was entitled to retain the northern portion of shop No. 426 on payment of Rs. 16/- per mensen as rent. The plaintiff further stated that the above condition was a clog on equity of redemption and he was not bound by it. It was also averred that the mortgagee defendant No. 1 gave on lease the northern portion of shop No. 426 to Surjan Dass and southern portion thereof to defendants 3 and 4, sawan Mal and Amir Chand respectively. He instituted the suit for possession by redemption on payment of Rs. 7,500/ -. Defendants 1 to 4 contested the suit and controverted the allegations of the plaintiff. According to the defendant No. 1, he became a tenant by virtue of the option clause by which he was given a right to retain possession of the northern portion of shop No. 426 on payment of Rs. 16/per mensem as rent. He however, pleaded that the rent was to be adjusted towards the amount of Rs. 2800/-which was to be retained by the plaintiff as an advance rent. He also averred that the plaintiff was entitled to redeem the property on payment of Rs. 4700/-as he was exercising the option to retain the northern portion of the shop in his possession as a tenant. He also submitted that the (defendant No. 1) was carrying on business in partnership with defendants 3 and 4 in northern portion of shop No. 426 and he would become tenant under him on redemption of the property. Defendant No. 1 also claimed an amount of rs. 1935. 33 np. as he spent this amount on the property in dispute with the consent of the plaintiff. The other defendants also contested the suit. On the pleadings of the parties, the following issues were framed:--

(3.) DEFENDANT No. 1 was proceeded against ex parte but subsequently he got the proceedings set aside and filed a written statement which gave rise to the following three issues:-