GURCHARAN DASS Vs. BHAGAT SINGH

JUDGEMENT

(1.) THIS Regular Second Appeal has come up for hearing after notice, of motion was issued by the Court vide its order dated 13. 10. 1997.

(2.) THE appellant herein felt aggrieved from the judgment of the learned 1st Appellate Court vide which an appeal was dismissed with costs and the judgment and decree passed by the learned trail Court was affirmed. The respondents herein filed the suit for possession on the plea of redemption of the mortgage created for a sum of Rs. 1500/ -. Respondent No. 1 claimed that he was owner of the shop and he had mortgaged the shop with possession vide registered mortgager-deed dated 6. 12. 1978 for a sum of Rs. 1500/ -. No time was fixed for redemption. Defendant No. 1 in the suit had handed over possession to defendant No. 2 who is stated to be the real brother of defendant No. 1. As such, defendant No. 2 was also impleaded as defendant in the suit. The suit was contested by the present appellant on the plea that the suit itself was not maintainable and on merits, it was stated that the shop in dispute was taken on rent by one of the defendants in the year 1978, but he vacated the same and possession of the shop was handed over to the present respondents in the year 1979. It was averred that mortgage-deed was sham transaction and in fact it was tenancy between the plaintiff and the defendants. The shop was valued at Rs. 15,000.00 at the relevant time and consequently mortgage of the shop for Rs. 1500 was mere imaginative act on the part of the respondents. The other defendant in the suit had supported the case of the present appellant. Learned trial Court upon pleadings of the parties had framed the following issues :

(3.) THE basic contention raised on behalf of the appellant is that the mortgage Sham transaction keeping in view the value stated in the mortgage-deed and other attendant circumstances. The result of such sham transaction was that the appellant was in possession of the shop as tenant and would not liable to be evicted by the Civil Court in a suit for possession.