CHANDER SHAKHER Vs. DHARAM CHAND SHUKLA AND OTHERS

JUDGEMENT

(1.) The instant appeal stands directed against the impugned judgement and decree of the learned District Judge, Hamirpur, Himachal Pradesh, whereby, he, while modifying the judgement and decree of the learned trial Court whereby suit of the plaintiff stood dismissed, partly decreed vis.a.vis the suit for possession by way of redemption except the shop in question i.e. the shop shown in Tatima Ext.PW-2/A measuring 2.80 x 4.50 sq.mts. on payment of mortgage money of Rs.1500/- in favour of defendant No.1 or her legal representatives within 30 days. However, the plaintiff standing aggrieved by the rendition of the Learned District Judge concerts through the instant appeal to seek reversal of the judgement and decree of learned District Judge, Hamirpur.

(2.) The facts necessary for rendering a decision on the instant appeal are that the plaintiff had claimed a decree for possession by way of redemption of 1/32 share measuring 20.74 sq.mtrs. out of the land comprised in Khata No. 243, Khatoni Nos. 734 to 758, Kita 43 measuring 663.62 sq.mtrs. and 1/21 share measuring 19.29 sq.mts. out of the land comprised in Khata No. 242, Khatoni Nos. 728 to 733 measuring 405.23 sq.mtrs. as described in the Jamabandi for the year 1989-90 and more specifically described in head note of the plaint alongwith two shops and one room shown in the site plan Ext.PW-2/A by points ABCD measuring 2.85 x 4.50 Sq.mts. and another shop shown by points EFGH measuring 2.80 x 4.50 sq.mts. hereinafter referred to as the suit property on payment of mortgage debt/money of Rs.1500/-. The said reliefs had been claimed by the plaintiff on the ground that the plaintiff mortgaged the suit land alongwith the said shops in favour of defendant No.1 against mortgage money of Rs.1500/- vide mutation No.1000 sanctioned on 23.07.1980 with possession by delivering vacant possession of the suit property to defendant No.1. It was conditioned that on payment of mortgage money, the defendant No.1 was bound to hand over the vacant possession of the suit property in favour of the plaintiff. But the defendants No. 2 and 3 claimed themselves to be in possession of the shops as tenants of defendant No.1. The defendant No.1 was never allowed and legally authorized by the plaintiff to create any tenancy over the suit property and as such she was not legally entitled to create any tenancy or interest in the suit property beyond the period of her interest and in case she created any interest in the suit property, the same has no effect on the rights of the plaintiff and the plaintiff is entitled to get vacant possession of the suit property as the defendant No.1 was not legally entitled to create any tenancy in favour of defendants No. 2 and 3. The plaintiff requested the defendants several times to receive mortgage money and deliver the vacant possession of the suit property by getting the mortgage redeemed but they refused to do so, as a result of which, he was compelled to file the suit and claimed the said relief.

(3.) The suit of the plaintiff was resisted by defendant No.4 Ashok Kumar and has taken preliminary objections qua maintainability, locus standi and cause of action. On merits, the averments made in the plaint were termed as wrong and pleaded that the plaintiff had inducted defendant No.4 as tenant in the year 1977 and he is paying rent to the plaintiff since then. The mortgage has been executed of the suit property by the plaintiff in favour of defendant No.1 to defeat his interest. The defendant No.4 is licence holder of the Municipal Council, Hamirpur in the suit premises on deposit of licence fee since 1977 till date and on the basis of said averments, the defendant claimed dismissal of the suit.