CHANDERWATI Vs. RAJE LAL

JUDGEMENT

(1.) IN civil suit No. 83 filed on June 3, 1976 and decided on June 9, 1977 and Civil Appeal No. 45/13 of 1977 decided on February 8, 1978 the only point for consideration before the learned courts below was if Raje Lal defendant-respondent No. 9 tenant in the mortgaged shop would be ejected therefrom while restoring possession of the shop to the mortgagor on redemption or not. Learned trial Court held that the tenant having been inducted by the mortgagee shall have to vacate the tenancy premises while restoring possession to the mortgagor on cessation of the mortgage. Learned lower Appellate Court, however, reached the conclusion that father of the tenant was a tenant under the mortgagor of this very shop before the creation of the mortgage with effect from May 9, 1941 on the basis of the rent note Exhibit D.1 and that the tenant's father as also the tenant himself after his father's death, have been executing fresh rent notes in favour of the mortgagor and the mortgagee from time to time but retained possession of the shop all through for the last over 35 years upto the date of the institution of the suit. It was, therefore, held by the lower Appellate Court that defendant-respondent No. 9 would not be required to vacate the shop in the course of redemption of mortgaged shop by the mortgagor from the mortgagee.

(2.) IN the light of the finding of fact pronounced by the learned lower Appellate Court, the legal conclusion arrived at by it is also legally unassailable. Constitution Bench of five Hon'ble Judges of the Supreme Court in Smt. Gian Devi Anand v. Jeevan Kumar and others, 1985(1) RCR 459 (SC), held that commercial tenancies are also heritable. The above said rule was also held applicable to tenancy premises covered by Haryana Urban (Control of Rent and Eviction) Act, 1973 in Narain and others v. Om Parkash Gupta, AIR 1987 Supreme Court 1602 : 1987 HRR 373. There is thus no merit in the Regular Second Appeal. Regular Second Appeal No. 1410 of 1978 is, therefore, dismissed. Costs shall follow the event. Appeal dismissed.