GAUTAM LAL Vs. LRS OF SUKHLAL

JUDGEMENT

(1.) INSTANT second appeal has been filed under Section 100, C.P.C. against judgment and decree dated 1.8.2005 passed by the District Judge, Dungarpur in Civil Appeal No. 30/1999, whereby, learned lower appellate Court reversed the judgment and decree dated 30.10.1999 passed by Addl. Civil Judge (Senior Division), Dungarpur in Civil Original Suit No. 3/1999 in a suit for redemption of mortgage.

(2.) BRIEF facts of the case are that plaintiff-respondent preferred civil suit before the Addl. Civil Judge (Senior Division), Dungarpur for redemption of mortgage and possession of the shop and damages, in which, it was submitted that plaintiff owns a pucca shop at the site mentioned in para 1 of the plaint at Mathu Gamda Road, Dungarpur. Said shop was mortgaged with defendant-appellant on 5.6.1989 for Rs. 14,000/- and possession of the shop was given within stipulated time which was after six years period, the defendant-appellant shall take Rs. 14,000/- from the plaintiff and would hand over possession to him and, in the event of non-handing over possession, the defendant would pay damages.

(3.) UPON request made by both the parties, following substantial question of law was framed for consideration: "Whether the appellant was in the capacity of tenant prior to execution of mortgage deed and on that basis whether he can hold possession as tenant even if decree for redemption has been passed in favour of respondents by the appellate Court." After framing above question, both the parties were heard for adjudicating the controversy.