GIRDHARI LAL BHARGAV Vs. MATA DIN

JUDGEMENT

(1.) This second appeal by the defendants arises out of the suit filed by the respondent for possession of the land in dispute by way of redemption.

(2.) The plaintiff alleged that the suit land had been mortgaged with possession to Girdhari Lal, appellant, for an amount of Rs. 300/- with the stipulation that the mortgagee shall be entitled to interest on the said amount at the rate of 7-1/2 per cent per annum which shall be deducted from the lease money of the said land and that if the lease money exceeded the amount of the interest the same would be adjusted towards the principal amount. According to the plaintiff, the total amount due to the mortgagee under the said mortgage was Rs. 860/- whereas he had realized Rs. 1512/- by way of lease money and, therefore, he claimed redemption of the suit land without payment of any amount together with a decree for the amount received in excess by the mortgagee. The claim of the plaintiff for redemption was accepted by the trial Court but his prayer for realization of the excess amount was declined. The appeal filed by the defendants and cross-objections filed by the plaintiff were also dismissed by the learned Additional District Judge, Gurgaon, vide judgment dated May 6, 1968. Still dissatisfied, the defendants have come up in this second appeal.

(3.) The appellant No. 1 is the mortgagee and appellant Nos. 2 and 3 are tenants inducted by the mortgagee on the land in dispute after raising construction thereon. On behalf of the mortgagee, the only contention raised was that his claim for improvement has been wrongly rejected by the Courts below. It is not disputed by his learned counsel that the construction was raised not only without consent of the mortgagor but in spite of notice served by him not to do so. The mortgagee has a right only to preserve his security and to incur necessary expenses for that purpose but in law, he has no right to make any improvements on the demised property without the consent of the mortgagor. His claim for improvements, therefore, was rightly rejected by the Courts below.