SAT PARKASH Vs. KRISHAN LAL

JUDGEMENT

(1.) Suit filed by the appellant-plaintiff was dismissed by the Trial Court, vide judgment and decree, dated 18.03.2015, and as even the appeal preferred against the said decree failed, and was dismissed on 24.05.2017, he is before this Court in Regular Second Appeal. Parties to the lis, hereinafter shall be referred to by their original positions in the suit.

(2.) A suit for recovery of Rs.75,457/-, on account of use and occupation charges of the shop situated at Village Abheypur, Tehsil and District Panchkula, was filed by the plaintiff. In brief, the case set out by him was that he was the absolute owner of the suit property, which he mortgaged with defendant for Rs.80,000/-, vide mortgage deed dated 10.01.1995. It was agreed between the parties that whenever the plaintiff/ mortgagor redeems the property on payment of mortgage amount, the possession of the premises shall be handed over to him. However, defendant violated the terms of the mortage deed as he rented the shop in question to Ramesh Kumar and started receiving rent. Even though the plaintiff repeatedly approached the defendant to redeem the property, but to no avail. On 10.06.2003, a post dated cheque was issued by the plaintiff to the defendant, which he refused to accept. Subsequently, a notice dated 13.08.2003, was served upon the defendant, and along therewith a cheque dated 28.08.2003, was also sent. However, despite having received the cheque, the defendant did not hand over possession of the suit property. Where after the plaintiff filed a suit for possession by way of redemption of mortgage on 09.10.2003, which was decreed vide judgment and decree, dated 08.06.2007. The appeal preferred by the defendant against the said decree failed and was dismissed right up to this Court. Even Ramesh Kumar filed a suit against the plaintiff, which too was dismissed for non-prosecution on 01.03.2008. The act of defendant and Ramesh Kumar caused harrassment and mental agony to the plaintiff. Plaintiff deposited Rs.80,000/- in the treasury, in terms of the order dated 19.04.2004, passed by the Civil Court, Panchkula. The rental value of the suit property was Rs.6,000/- per month, and the defendant retained the shop illegally, despite redemption of mortgage and continued to occupy the same. Therefore, the plaintiff was entitled to recover rent @ Rs.6,000/- per month from the defendant, who despite redemption of the suit property continued to be in possession thereof from 10.01.2005 to February, 2008, i.e. period of unauthorised occupation.

(3.) In the written statement filed by the defendant, an objection as regards the maintainability of the suit, in terms of Order II Rule 2 of the Code of Civil Procedure, was raised. Further, it was admitted that suit property was mortgaged with the defendant, but he never inducted Ramesh Kumar as tenant over the suit property. In fact, plaintiff had inducted Ramesh Kumar as tenant. As the suit property was under tenancy, the vacant possession thereof could not be handed over to the plaintiff by the defendant. He never violated terms of the mortgage deed. No mortgage amount was offered by the plaintiff to the defendant to redeem the mortgage. Further, the defendant was not bound to pay the amount claimed by the plaintiff and even otherwise the rate of rent of the suit property was Rs.400/- per month. Thus, the suit was liable to be dismissed.