DAYA BHAN YADAV Vs. AGYA WANTI AND ORS.

JUDGEMENT

(1.) Present appeal, at the hands of unsuccessful defendants, is directed against the concurrent findings of facts recorded by both the learned courts below, whereby the suit for possession filed by the plaintiff-respondent, was decreed.

(2.) Briefly put, facts of the case as noticed by learned first appellate court in para 2 to 6 of the impugned judgment, are that plaintiff-Agya Wanti through her registered attorney-Lal Singh, filed a suit claiming decree of possession of the suit property by redemption of registered mortgage deed dated 8.4.2003 qua suit pr operty against defendant No.1-Daya Bhan Yadav. She pleaded that defendant No.2 who was brother of defendant No.1, started living with him in the suit property. Defendants raised the plea of joint tenancy in the suit property instead of their rights of mortgagee in possession in the suit property. Initially, defendants did not turn up to contest the suit and remained ex parte, despite due service. Suit of the plaintiff was decreed ex parte, vide judgment and decree dated 18.1.2011. However, later on, on the basis of application under Order 9 Rule 13 of the Civil Procedure Code ('CPC for short), that ex parte judgment and decree dated 18.1.2011 was set aside and suit was again fixed for filing written statement on behalf of the defendants. Defendants contested the suit with the preliminary objections that they were in possession of the suit property as tenant.

(3.) Therefore, the suit in the present form was not maintainable, rather it was a counter blast to the suit for permanent injunction already filed by the defendants against the plaintiff. Plaintiff did not file the suit through a competent and authorized person. In fact, previously, plaintiff had created a mortgage in favour of defendants. Later on, a tenancy was created by her in favour of defendants for monthly rent of '1000/-. The rent was payable in advance at the very beginning of each English Calendar month. They denied that they were mortgagee in possession of the suit property. They also added that both the defendants were joint tenants under the plaintiff in the suit property being tenants with Agya Wanti-landlord. The suit property was having worth of lacs, so it could not be mortgaged for a meagre sum of just '5000/-. Moreover, when plaintiff threatened to interfere in their possession, they filed the suit for permanent injunction. In this way, they denied all the pleas of the plaintiff on merits, being wrong and incorrect, and dismissal of the suit was prayed for.