SATPAL Vs. ROHTASH

JUDGEMENT

(1.) THIS is defendant's appeal filed under Section 100 of the Code of Civil Procedure, 1908 challenging the concurrent findings of facts recorded by both the Courts below. The short question which falls for consideration is whether the defendant-appellant who is mortgagee of the suit property is entitled to continue as tenant of the plaintiff-respondent, the mortgagor.

(2.) PLAINTIFF -respondent (now represented by his legal representatives respondent Nos. 1 to 4) filed a Civil Suit No. 380 of 1994 on 20.7.1994 for possession by way of redemption against the defendant-appellant asserting that he is owner of the suit property which was mortgaged by him vide mortgage deed dated 6.5.1989 for a consideration of Rs. 10,000/-. It has also been asserted that possession of the suit property was handed over to the defendant- appellant which was given back to the plaintiff-respondent on payment of due amount. According to the averments made by the plaintiff-respondents, defendant-appellant failed to hand over vacant possession after receiving the redemption amount. As a result, the instant suit was filed claiming possession by way of redemption. Further directions have also been sought against the defendant-appellant to hand over vacant possession to the plaintiff-respondents after receipt of the redemption amount. The stand of the defendant-appellant in nut shell is that he is tenant under the plaintiff-respondent @ Rs. 200/- p.m. It has further been asserted that the mortgagee-deed was a sham transaction and was got executed with the object of ejecting him from the site in dispute as it was claimed that the tenancy existed before the execution of the mortgage deed dated 6.5.1989. Defendant- appellant also alleged that he has construed one room, one shed and four walls at a height of 9 feet and has incurred expenses of Rs. 60,000/-. The counter claim for recovery of Rs. 60,000/- along with interest, has also been made.

(3.) ON appeal, the afore-mentioned findings have been affirmed by the Ld. Addl. District Judge holding that there is nothing in the mortgage deed to indicate any intention of the plaintiff-petitions to create a lease in favour of the defendant-appellant in respect of the suit property. It has also been proved that the defendant-appellant was in exclusive possession of the suit property in pursuance to mortgage deed Ex. P.1 dated 6.5.1989 and he never remained in possession over the suit property as a tenant/lessee prior to that date.