GOBIND RAM Vs. RAJPHUL SINGH

JUDGEMENT

(1.) Gobind Ram has filed this appeal under Clause 10 of the Letters Patent, against the judgment and order of a learned Single Judge of this Court, dated May 26, 1972, by which his Regular Second Appeal No. 2023 of 1968, was dismissed with costs. Though detailed facts are given in the judgment of the learned Single Judge, yet in order to appreciate the controversy, a few salient features of the case may be noticed which are given below.

(2.) Rajphul Singh plaintiff was the owner of the property comprised in shop No. 426 and half share of shop No. 427. He mortgaged the said property with Gobind Ram by means of a registered mortgage deed, dated March 27, 1959, for a consideration of Rs. 7500/-. The mortgagee was given the actual possession of the northern portion of shop bearing No. 426 shown by letters 'ABCD'. The actual possession of the remaining portion of shop No. 426 could not be given to the mortgagee as one Chaman Lal was occupying that portion as a tenant and similarly the possession of shop No. 427 could not be given as Raghu Nath, defendant No. 5, was occupying the same as a tenant. The relevant conditions regarding redemption were that the plaintiff could redeem the property after one year and within a period of ten years from the date of registration, 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 monthly rent of Rs. 16/- and that the mortgagor's debt would be deemed to be reduced to the extent of Rs. 2800/-. The plaintiff brought a suit for possession by way of redemption in which it was pleaded that the above mentioned conditions were a clog on equity of redemption and that he was not bound by those conditions. The suit was contested by the defendants. The trial Court held that the above-mentioned conditions were a clog on the equity of redemption. A decree for redemption was passed by the trial Court on July 31, 1967, on payment of Rs. 7500/-, with a direction that he would be entitled to obtain physical possession of both the portions of shop No. 426, and would not be entitled to actual possession of shop No. 427 which was in possession of defendant No. 5. A final decree was also passed in the same terms on August 8, 1967. The first appellate Court affirmed the judgment and decree of the trial Court. On second appeal, the learned Single Judge affirmed the judgment and decree of the first appellate Court. It is in these circumstances that the present letters patent appeal has been filed.

(3.) From the bare perusal of the judgment of the learned Single Judge, it is clear that after considering the entire case law, it has been found that the conditions reproduced above were a clog on equity of redemption. Mr. D.N. Aggarwal, learned counsel for the appellant, contended that the conditions were not a clog on equity of redemption and in support of his submission, relied upon the decision of their Lordships of the Supreme Court in Ganga Dhar v. Shankar Lal and others, 1958 AIR(SC) 770 After giving our thoughtful consideration to the entire matter, we find ourselves unable to agree with the contention of the learned counsel for the appellant.