KHARATI LA Vs. JANAK RAJ

JUDGEMENT

(1.) This is defendants appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for short, the Code) against the concurrent findings of fact recorded by both the Courts below holding that plaintiff-respondent, the mortgagor, is entitled to redeem, the mortgaged property from the defendant-appellant-the mortgagee on payment of a sum of Rs. 11,000/- as is stipulated in the mortgage deed dated 27-4-1989, Exhibit P-l.

(2.) Brief facts of the case are that plaintiff-respondent filed a suit claiming that he is a mortgagor and had mortgaged with possession the suit property with the defendant-appellant on 27-4-1989 for a sum of Rs. 11,000/-. The mortgage deed was registered on 28-4-1989. The stipulation in the mortgage deed further revealed that the mortgage could be redeemed by the plaintiff-respondent-the mortgagor, at any time he makes the payment of entire mortgage amount to the defendant-appellant-the mortgagee. On 2-11-1996, the plaintiff-respondent issued a legal notice through his counsel to the defendant-appellant offering an amount of Rs. 11,000/- for redeeming the suit property and also requested the defendant-appellant to handover the vacant possession of the suit property to him. However, it is alleged that the defendant-appellant became dishonest and did not wish to handover the vacant possession by accenting Rs. 11,000/- as mortgage amount.

(3.) The defendant-appellant set up the plea claiming that he was a tenant on the suit property at the rate of Rs. 1300/- per month even before the execution of the mortgage deed. Subsequently, the rate of rent was enhanced to Rs. 1450/-and Rs. 1600/- per month. It has been claimed that the execution of mortgage deed is merely a device to secure the possession of the suit property by filing the present suit. The defendant-appellant has refused to vacate the shop in dispute which caused annoyance to the plaintiff-respondent. In order to show that mortgage deed is a sham transaction, it has been averred that the property in dispute is worth six lacs and the plaintiff-respondent would not ever mortgage such a property for a sum of Rs. 11,000/-. The defendant-appellant has also claimed protection of the Haryana Urban (Control of Rent and Eviction) Act, 1973 (for short, 1973 Act) and as such, no suit is competent.