LAXMI NARAIN Vs. JAGDISH

JUDGEMENT

(1.) The present appeal directs challenge against judgment and decree dated 31.08.2005 passed by the Additional District Judge, Gurgaon whereby appeal against judgment and decree dated 15.09.2004 passed by the Civil Judge (Junior Division), Gurgaon (hereinafter referred to as the 'trial Court') was allowed and suit filed by the respondent/plaintiff was ordered to be decreed.

(2.) The facts relevant for disposal of present appeal are that the respondent/plaintiff filed suit for possession by way of redemption of mortgage in respect of the shop in question, situated in the abadi of Jacubpura, Gurgaon. It is averred that Sh. Bal Kishan, father of the plaintiff was owner in possession of said shop. He executed Will dated 30.08.1984 in favour of the plaintiff. Bal Kishan died on 11.05.1985 and thereafter, the respondent/plaintiff became sole owner in possession of the shop. Bal Kishan was in need of money and accordingly, he mortgaged the suit property in favour of the appellant/defendant vide mortgage deed bearing No.4311 dated 25.01.1984 and possession of the shop was delivered to the appellant. It was agreed that possession will be handed over to the respondent after payment of mortgage amount of Rs.10,000.00. The plaintiff called upon the defendant to receive the mortgage money but he refused on 07.11.1994.

(3.) The appellant/defendant filed the written statement and raised preliminary objection that the suit is not maintainable as he is a tenant in the shop in dispute. He also challenged locus standi of the plaintiff to file the suit and jurisdiction of the Civil Court to entertain and decide the suit. The suit is stated to be bad for non-joinder of necessary party and result of collusion between plaintiff and other heirs of Bal Kishan who had already collected rent in respect of the suit property from the defendant on various occasions. It is further averred that the plaintiff has concealed material facts from the Court. Govind Ram, brother of the plaintiff filed ejectment petitions under Sec. 13 of the Haryana Urban (Control of Rent and Eviction) Act admitting him to be tenant in the shop in dispute.