SHRINARAIN Vs. LACHHIRAM

JUDGEMENT

(1.) THE above three appeals arise out of suit No. 348 of 1961 instituted in the Court of Munsiff Magistrate Jaipur City (East), Jaipur by Lachhiram against Hari Narain, Shrinarain and Mohinuddin for redemption of shop situated at Moti-Dungari Road in the city of Jaipur. Since all these appeals are directed against the judgment of the Additional District Judge No. 2, Jaipur City, it would be convenient to dispose them of by common judgment.

(2.) THE property in dispute belonged to Lachhiram, who mortgaged the same in favour of defendant No. 1, Hari Narain on 20-4-1956 by a registered mortgage deed for a consideration of Rs. 451/ -. THE possession of the shop was admittedly handed over to the mortgagee at the time of mortgage. It is alleged by the plaintiff that he gave a notice to the defendant No. 1, dated 31-12-63 to redeem the mortgage but the defendant No. 1 replied that the real mortgagee was defendant No. 2 Shrinarain and that a sum of Rs. 500/- had been spent on repairs and improvements of the mortgaged property and that defendant No 3 Mohinuddin had been inducted as a tenant by the mortgagee. Consequently the plaintiff filed the present suit for redemption of the mortgage and possession of the shop in question on 20. 7. 1964 in the Court of Munsiff, Jaipur City, Jaipur and prayed that a decree for redemption and possession of the shop in question may be passed in his favour on payment of Rs. 451/ -. All the three defendants filed a joint written statement in which they pleaded that the mortgage deed was no doubt written in favour of Harinarain, defendant No. 1, who was in fact only a Benami and the real mortgagee was defendant No. 2 Shrinarain. It was also pleaded that the mortgagee had spent Rs. 500/- for repairs and improvements on the mortgaged property and consequently the mortgagee was entitled to Rs. 500/- spent on account of repairs along with interest thereon at the rate of 12% per annum as stipulated in the mortgagee deed. It was also pleaded that the defendant No. 3 Mohinuddin had been inducted as a tenant by the mortgagee and since no case for ejectment had been made out against him under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 a decree for possession could not be passed against him.

(3.) THIS brings me to the last point, namely, whether the plaintiff is entitled to get possession of the suit shop from Mohinuddin, the alleged tenant of the mortgagee ? Learned counsel for Mohinuddin in Appeal No. 214 of 1969 has contended that Mohinuddin has been admitted to be the tenant of the mortgagee by the plaintiff himself in para No 4 of the plaint, and, therefore, the lower appellate court was not justified in holding that the defendant No 3 Mohinudin is not proved to be a tenant in the suit shop. He has also invited my attention to the memo of appeal filed by the plaintiff in the lower appellate court wherein no specific objection has been taken to the finding of the trial court that the defendant No. 3 Mohinudin was a tenant in the shop and had been lawfully put in possession of the same by the mortgagee. On the other hand the learned counsel for the plaintiff has strenuously urged that the finding of the lower appellate court in this connection is a finding of fact which cannot be interfered with in second appeal. The lower appellate court has no doubt observed that no rent note of Mohinudin or receipts of rent paid by Mohinudin have been placed on the record nor has Mohinudin been examined as a witness in the case. It is also true that the learned lower court has not considered the evidence of Shrinarain sufficient for holding that Mohinudin had been admitted as a tenant by him. If the matter had rested there I would not have interfered with the finding of the lower appellate court. But it does appear that the lower court did not take into consideration the averment contained in para No. 4 of the plaint wherein the plaintiff had stated that Mohinudin was occupying the shop in question as a tenant of the mortgagee. It is true that this allegation has been made by the plaintiff on the basis of the information alleged to have been supplied to him by the defendant-mortgagee himself. In the written statement filed by the defendants the position was made still clear and it was definitely stated that Mohinudin had been admitted as a tenant on a monthly rent of Rs. 15/- by the mortgagee. Shrinarain supported this allegation when he came in the witness-box as D. W. 1. But the plaintiff did not cross-examine him on this point at all. Apart from that the plaintiff has not said a word in his statement that Mohinudin was not in possession of the shop in question as a tenant. As a matter of fact the plaintiff does not seem to have seriously challenged this part of the defendant's case before the trial court and in the memorandum of appeal filed by him before the first appellate court, as already stated above, no specific objection was taken that the finding of the trial court that he had been inducted as a tenant by the mortgagee was erroneous. Thus the learned Additional District Judge while arriving at his finding in this connection has ignored the allegations in para No. 4 of the plaint. He has failed to notice that the statement of Shrinarain (D W. 1) in this connection was allowed to go unchallenged in the course of cross-examination. He also does not seem to have taken into consideration that there was no specific objection taken by the plaintiff in the memorandum of appeal filed by him in the first appellate court. In this view of the matter I feel inclined to hold that the finding of the learned first appellate court on this point stands vitiated and I have come to the conclusion that the defendant No. 3 Mohinudin was inducted as a tenant of the mortgagee Shrinarain.