BANARSI DASS Vs. GIAN CHAND

JUDGEMENT

(1.) THE plaintiff, having remained concurrently unsuccessful before the courts below has approached this Court through the present regular second appeal.

(2.) PLAINTIFF , Banarsi Dass, filed a suit for possession by way of redemption with regard to the shop in dispute. It was averred by him that he is the owner of the shop in question which he had mortgaged with possession in favour of the defendant for a consideration of Rs. 17,00/- vide a registered mortgage deed dated January 29, 1981 with the stipulation that the said mortgage would not be redeemed for a period of 10 years. Later on April 9, 1986, he had filed an earlier suit for possession by way of redemption. However, vide judgment and decree dated June 4, 1988, the said suit was dismissed as pre-mature. Accordingly, the plaintiff maintained that the period of 10 years stipulated in the mortgage deed having expired on January 28, 1991, and the defendant having not delivered the possession to him inspite of a notice being served on this regard, the present suit was filed by the plaintiff for possession by redemption on payment of the mortgage amount of Rs. 17,000/-. A further claim of Rs. 100/- per day was made for recovery of mesne profits from the date of filing of the suit till the delivery of possession.

(3.) THE defendant further maintained that the plaintiff had leased out the shop in dispute to him but with a view to avoid the protection of the provisions of East Punjab Urban Rent Restriction Act and with a view to override the same, he had termed the said transaction as a mortgage. It was specifically claimed that there was a relationship of landlord and tenant between the parties with regard to the shop in dispute and in fact the mortgage deed was in reality a lease deed whereby the plaintiff had leased out the shop in question to him.