SHEIKH MUSHTAQ AHMED Vs. L SOHAN LAL

JUDGEMENT

(1.) THIS is a defendants appeal in a suit by the plaintiff for possession by redemption of a house containing a few shops and the land appurtenant thereto. The trial court of the D. J. Srinagar decreed the plaintiffs suit for possession and redemption and hence the defendants filed the present first appeal which was heared by a Division Bench consisting of Jaswant Singh and Mufti Baha -ud -Din JJ. The two judges, however, differed on two points of law but agreed on all other points and hence the case has been referred to me for a final decision.

(2.) PUT briefly, the plaintiffs case was that Aziz Mir and Sona Mir defendants 2 and 3 were the original owners of the property which is a three storeyed eight windowed house with shops in the ground floor and the land appurtenant thereto. The property is situate in Maisuma, a Mohalla in the city of Srinagar. It is not disputed that the property being situate within the precincts of the city of Srinagar is governed by the provisions of the Houses and Shops Rent Control Act. (hereinafter to be referred to as the Act). Defendants 2 and 3 executed a lease in favour of the first defendant, Mohd. Shafi on 14th Chet, 2006 - April, 1949 and executed a rent deed wherein the rent paid was fixed at Rs.100 per month. Two years later, i. e., on 4th Baisakh, 2008 -1951 AD the original owners of the property (defendants 2 and 3) executed a usufructuary mortgage in favour of the first defendant for a sum of Rs.5,000. The period for which the mortgage was to ensure was three and a half years from the date of the execution of the deed. In the mortgage deed there was an express stipulation that on redemption of the mortgage the status of defendant 1 as lessee would be restored and he would continue as a lessee of the property. Before the mortgage was redeemed, the first two defendants sold the property to the plaintiffs Sohan Lal and others. After the period of the mortgage was over, the plaintiffs vendees brought a suit on 31 -10 -66 for possession and redemption after depositing the mortgage money of Rs. 5,000 in court as required by the provisions of S, 83 of the Transfer of Property Act (hereinafter to be referred to as the TP Act). The plaintiffs also prayed for a decree for mesne profits amounting to Rs. 1,200.

(3.) THE suit was resisted by the first defendant mainly on the ground that in view of the stipulation in the mortgage, the original lease taken by the defendant revived and he continued to be a lessee and a decree for Khas possession against him could not be passed.