OM PRAKASH CHAND Vs. PARKASH CHAND

JUDGEMENT

(1.) This appeal has been filed by the appellantdefendant (hereinafter referred to as the 'defendant') against the judgment and decree dated 18.8.2006, passed by learned District Judge, Hamirpur, affirming the judgment and decree dated 14.12.2005, passed by learned Civil Judge(Junior Division), Court No.II, Hamirpur, H.P., whereby the suit filed by the respondent-plaintiff (hereinafter referred to as the 'plaintiff') has been decreed.

(2.) The brief facts of the case are that the plaintiff filed a suit for redemption. It is averred that the plaintiff is mortgagor of a shop measuring 8 feet X 18 feet as shown Mark-A in the site plan and the land to the extent of 1/9th share measuring 15-78 Sq.Mtrs. out of the land comprised in Khata No.180, Khatauni No.800, Khasra No.547, measuring 142.02 Sq.Mtrs., as per Jamabandi for the year 1997-98, situated in Up Mahal Partap Nagar, Tappa Bajuri, Tehsil and District Hamirpur, H.P. (hereinafter referred to as the 'suit premises'). It is further averred that on 27.7.1992, the plaintiff mortgaged the suit premises in favour of the defendant on receipt of Rs.5000/- as mortgage debt. It is alleged that the plaintiff was ready and willing to pay the mortgage money to defendant, but the defendant was neither ready to receive the mortgage amount nor got the mortgage redeemed and finally on 28.12.2002, the defendant refused to receive the mortgage money and to redeem the mortgaged property i.e. the suit premises. Hence, the plaintiff has filed the present suit.

(3.) Defendant, by way of filing written statement, resisted and contested the suit by taking preliminary objections qua maintainability, estoppel, valuation and cause of action. On merits, the defendant claimed that no relationship of mortgagor and mortgagee existed or exists between the parties to the suit, but there is relationship of landlord and tenant because the shop was let out by the plaintiff in favour of the defendant at the rental of Rs.200/- per month and a sum of Rs.5000/- was taken by the plaintiff from the defendant as refundable security/Pugri at the time of termination of the tenancy and subsequently the rent was enhanced to Rs.325/- per month. It is averred that the agreement of mortgage was got executed by the plaintiff to escape from the provisions of H.P. Urban Rent Restriction Act and prayed for dismissal of the suit.