AJAY KUMAR Vs. JUJJAR MAL

JUDGEMENT

(1.) The Short question raised in this appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity the Code) by the plaintiff-appellant is Whether a mortgage would continue to enjoy his status as tenant in relation to the mortgagor which was pre-existing prior to the execution of the mortgage deed. Challenge in this appeal is to the concurrent findings of facts recorded by both the Courts below dismissing the suit of the plaintiffappellant Ajay Kumar, who stands in the shoes of the mortgagor and the defendantrespondent 1 Gujjar Mai who is the mortgagee.

(2.) Brief facts of the case which are necessary for disposal of the instant appeal are that the plaintiff-appellant Ajay Kumar filed a civil suit for possession bearing No. 64 of 1977/329 of 1977 on 17-9-1977/18-7-1977. He claimed that he is entitled to seek actual physical possession by redemption in respect of the disputed shop which he claimed to have purchased on 25-5-1977 from the original owner Dev Raj and Mulkh Raj, defendant-respondents 2 and 4. He further averred that the shop was earlier mortgaged with possession by Dev Raj and Lekh Raj, defendant-respondents 2 and 3 to the extent of 2/3rd share in favour of mortgagee Gujjar Mal, defendant-respondent 1 for total sum of Rs. 2000/- vide registered mortgage deed, Ex. D-l dated 18-7-1947. It was further stated by the plaintiff-appellant that defendant respondent 1 Gujjar Mal has been in possession of the suit shop since 18-7-1947 when the mortgage in his favour was executed to the extent of 2/3rd share by defendant-respondents 2 and 3. According to the stipulation, the mortgage could be redeemed on payment of Rs. 2000/- along with interest thereon. Later on, a compromise was entered on 12-7-1954 stipulating that the shop in question could be redeemed by making payment of Rs. 2000/- only. The plaintiff-appellant asserted that he was entitled to redeem the mortgaged shop by making payment of Rs. 2000/- to defendant-respondent 1 Gujjar Mai. who is the mortga gee. It is claimed that he served a registered notice on the defendant-respondent 1 to accept the mortgage amount and deliver possession of the shop, but he declined.

(3.) Defendant-respondents 2, 3 and 4 were also made party to the suit, but they did not appear to defend and contest the suit. Consequently, they were proceeded ex parte by the learned Sub Judge vide his order dated 15-4-1977.