DES RAJ Vs. KULWANT SINGH

JUDGEMENT

(1.) THIS is plaintiff's appeal arising out of a suit for possession by way of redemption of a shop. The plaintiff has purchased the shop in dispute from Raunak Ram son of Bishna Mal Aggarwal vide registered sale deed. The shop was mortgaged by the plaintiff with the defendants vide registered mortgage deed dated 15.4.1957 for Rs. 1500/- with possession. The plaintiff sought possession of the shop by way of redemption. However, the defendants admitted mortgage but further stated that they were already in possession of the disputed shop as tenants and thus, the plaintiff can get the shop redeemed but the possession will remain with the defendants as tenant.

(2.) THE learned trial court decreed the suit holding that the defendants were tenants under the plaintiff before the aforesaid shop was mortgaged but they have surrendered their tenancy rights in favour of the mortgagor at the time of execution of the registered mortgage deed and thus, the tenancy rights will not revive. However, the first Appellate Court reversed the finding recorded by the learned trial Court holding that there is no specific plea regarding surrenderd of tenancy and thus, the plaintiff cannot be allowed to travel beyond his pleading. Consequently, reversed the finding recorded by the learned trial court but modified the decree to the extent that the plaintiff was not held entitled to physical possession of the shop on redemption.

(3.) A perusal of the plaint would show that the plaintiff has not made any pleading regarding the tenancy of the defendants in the shop in dispute. It was during the course of trial, the plaintiff came forward to allege that it was not the defendants who were tenant but Kishan Buttonwala (Shoe seller) when Des Raj appeared as P.W.5. A perusal of the mortgage deed would show that the recital in the mortgage deed are to the effect that the possession of the shop has been given to the mortgagee at the time of the execution of the deed and also liberty was given to the mortgagee to induct tenant. On the basis of such recitals in the mortgage deed it was submitted by the appellant that the possession has been given on the date of execution of the mortgage deed as mortgagee and further right has been given to induct tenant. It is, thus, evident that the tenancy rights were surrendered only then the question of handing over possession as mortgagee would arise and further right to lease out the premises.