ATUL GUPTA Vs. PARSHOTAMI DEVI

JUDGEMENT

(1.) The present regular second appeal is maintained by the appellant, who was defendant No. 2 before the learned trial Court (hereinafter to be called as "defendant No. 2"), laying challenge to the judgment and decree, dated 10.11.2017, passed by learned Additional District Judge, Hamirpur, H.P., in Civil Appeal No. 109 of 2013, whereby the judgment and decree, dated 29.07.2013, passed by learned Civil Judge (Sr. Div.), Court No. 1, Hamirpur, H.P, in Civil Suit No. 123 of 2008, was affirmed, wherein suit of the plaintiffs was decreed with costs.

(2.) Briefly, the facts, which are necessary for determination and adjudication of the present appeal, are that respondents No. 1 to 4/plaintiffs (hereinafter to be called as "the plaintiffs") filed a suit for possession by way of redemption on payment of mortgage money to the tune of Rs.5,000.00, qua two shops comprised in Khata No. 501, Khatauni No. 1001, Khasra No. 3079/649 and 3081/650 Kita 2, measuring 293 square meter, situated in Up-Mahal Shiv Nagar, Tappa Bajuri, Tehsil and District Hamirpur, as per jamabandi for the year 2003-04 (hereinafter to be called as the "suit shops/property/land"). As per the plaintiffs, they are owners of the suit property and the suit shops were constructed by their ancestor over Khasra No. 3079/649, which on north are surrounded by M.C. Path, on south by shop of Prem Lal, on east by PWD road and on west by their own house. Each shop is measuring 9' x 22' and are subject matter of the mortgage, which against mortgage amount to the tune of Rs.5,000.00 vide Rapat Rojnamcha, dated 10.06.1993 were mortgaged by Shri Lal Chand in favour of defendant No. 1, Smt. Amravati. Defendant No. 1 during subsistence of mortgage inducted defendant No. 2, as tenant in shop No. 2 and is in possession of shop No. 1. Thus, the plaintiffs are entitled for decree of possession against defendant No. 2 also. Though the plaintiffs offered mortgage amount of Rs.5,000.00 to the defendants and asked them to redeem the mortgage property, but in vain, hence they filed the present suit.

(3.) Defendant No. 1, in her written statement admitted the facts alleged in the plaint as a whole. However, in written statement filed on behalf of defendant No. 2, objection qua maintainability, estoppel etc. have been raised. On merits, the revenue entries have been denied and it has been averred that the suit property was previously owned by Lal Chand and after his death, it was inherited by the plaintiffs. The factum with regard to the mortgage has been denied for want of knowledge, however it has been averred that in case there is a mortgage, it is merely a paper transaction nothing else. As per defendant No. 2, defendant No. 1 is real sister of Lal Chand. The site plan produced by the plaintiffs has also been denied alongwith its specification and dimension. As per defendant No. 2, on 30.11.1992, his father took one shop on rent from Lal Chand at the rate of Rs.1,000.00 per month and an amount of Rs.12,000.00 by way of cheque No. 0062481 was paid as advance rent to him, which was duly received by him. On 01.07.1994 a further amount of Rs.1,000.00 as rent was paid to Lal Chand, vide cheque No. 326022. It has been further averred in the written statement that the entry in the revenue record qua mortgage is wrong and illegal and as the tenancy is prior to alleged mortgage, defendant No. 2 is entitled to continue the same even after redemption. As per defendant No. 2, the rent during the year 2000 was enhanced from Rs.1100.00 to Rs.1300.00 and since 05.02008, the rent is Rs.1500.00 per month and, therefore, the premises are in continuous possession of the replying defendant since 1992. Though, Amravati is not admitted to be a mortgagee, even then tenancy is valid and binding as was an act of good management and prudence created for the purpose of managing the same. Lastly, defendant No. 2 prayed for dismissal of the suit with costs.