DYAL CHAND Vs. BIHARI LAL

JUDGEMENT

(1.) DYAL Chand and others filed a suit for possession by way of redemption of the shop mortgaged, situated at Taraori, Tehsil and District Karnal. That suit was decreed by the trial Court and preliminary decree for symbolic possession by way of redemption was passed (si) favour of plaintiffs and against defendant No. 1 with costs, vide judgment and decree, dated August 31, 1978, directing that if the plaintiffs deposit an amount of Rs. 1,500.00 on or before November 6, 1978, the defendant shall deliver constructive possession of the shop in question as distinguished from actual possession to the plaintiffs. In case the amount due under the preliminary decree was not deposited on or before November 6, 1978, then defendant No. 1 shall be entitled to apply for a final decree. The plaintiffs, were, however, not satisfied with the said judgment and decree which they challenged in appeal. The appeal preferred by the plaintiffs was dismissed by Mr. R. K. Nehru, the then Additional District Judge, Karnal, vide his judgment and decree, dated May 4, 1979, whereby the judgment and preliminary decree passed by the trial Court were confirmed. Hence, this second appeal at the instance of the plaintiffs.

(2.) THE brief facts of the case are that one Gugan Mal father of the plaintiffs was the owner of the shop in dispute. He mortgaged it with possession with all rights and interest appurtenant thereto for Rs. 1,500.00 with Bihari Lal vide registered mortgage deed, dated June 29, 1959. The terms of the mortgage were that (i) the interest on the mortgage amount and rental income of the mortgaged shop shall be equal; (ii) the defendant was put in possession of the shop in dispute as mortgagee after mortgage in question; (iii) there was bar for redeeming the mortgage in question for one year from the date of mortgage; (iv) in case of any damage to the shop the mortgagor was liable to get it repaired; and (v) the mortgagee was himself responsible for getting it white-washed.

(3.) THE defendants resisted the suit on the grounds that Bihari Lal was in possession of the shop as tenant under Gugan Mal and the shop in dispute was mortgaged with him but he was to retain his tenancy rights. The defendant continued to be in possession of the suit property as a tenant and the interest was to be counted towards rent. There was no intention to merge the interest of the defendant as a lessee with his interest as a mortgagee. Preliminary objections were also raised that the suit was not maintainable, the plaintiffs had no locus standi to file the suit and the Court of Rent Controller had got the jurisdiction to try the suit.