SHAMBHU DAYAL Vs. SHIVCHARAN LAL

JUDGEMENT

(1.) This S. B. Civil Revision Petition is preferred against the order dated 17- 9-1999, whereby learned Additional District Judge, Dholpur, while setting aside the order of Civil Judge (Senior Division), Dholpur, passed on 20-2-1997, allowed Civil Misc. Appeal and dismissed the application of the objector-tenant filed under O. 21, Rule 36, CPC.

(2.) The brief facts giving rise to this revision are that the shop in question is located in the town Badi. The non-petitioner/decree- holders (hereinafter referred to as the decree-holder) grandfather Jhinguria Ram and father Chhidda Lal were owners of this shop. According to the decree-holder, three shops including the shop in question were mortgaged by his grand-father and father with possession to Khacchi Lai Heera Lai (hereinafter referred to as the first mortgagee), on 31-3-1928 by registered mortgage-deed. Thereafter the shop was re-deemed and re- mortgaged on 27-4-1947 to Kalua Ram Badri Prasad (second mortgagee) and possession of the shop was handed-over to them by the first mortgagee. Mortgage-deed was registered on 2-5-1947 in favour of second mortgagee. It is also the case of decree-holder that ancestors of the petitioner/objector were inducted as tenants in this shop during the year 1946 by first mortgagee and on subsequent mortgage in favour of the second mortgagee, they became the tenants of the second mortgagee. Thereafter Civil Suit No. 38/1982 was filed for redemption of this mortgage against the judgment-debtor-non- petitioner No. 2 Shri Ram Babu, who is son of second mortgagor Shri Badri Prasad. Final decree in redemption suit was passed in favour of the decree-holder vide Judgment dated 9-8-1991. An execution application was filed by the decree-holder and on issuance of warrant of possession in that Execution Case No. 3/91, the petitioner/objector filed objections under O. 21, Rule 36, CPC with the averments that this shop was let out to his grand-father Murlidhar and father Bal Mukand by mortgagor Shri Jhinguria Ram and Chhida Lal at monthly rent of Rs. 2/- in Samvat Year 1996 (in the year 1939) and thereafter the rent was enhanced to Rs. 20/- p.m. and when this shop was mortgaged in favour of Kalua Ram Badri Prasad on 27-4-1997 for a sum of Rs. 6.500/- Sarva Shri Murlidhar Bal Mukund were occupying the shop as tenants and after their death the petitioner became the tenant. It was also stated by the petitioner that the second mortgagee Kalua Ram Badri Prasad filed Suit No. 88/47 for eviction against the tenants viz. Murlidhar Bal Mukand, wherein the mortgagors Jhinguria Ram Chhida Lai were also made as defendants making it clear that the shop was on rent prior to 27-4-1947 and thus in a final decree of redemption and possession obtained by the decree-holder against the judgment-debtor, physical possession of the shop cannot be obtained from the tenant.

(3.) The decree-holder filed reply to the objections denying the possession of the objector/petitioner as a tenant of the decree- holder or his grand-father and father of the mortgagors with a plea that the ancestors of the objector were inducted as tenants in the year 1946 by the first mortgagee and on redemption of the shop, the mortgage money was paid by second mortgagee to the frst mortgagee and thus the grand-father and father of the objector-petitioner became the tenant of the second mortgagee. It was also stated that the second mortgagee had filed a suit bearing No. 88/1947 for eviction against the grand-father and father of the objector wherein Shri Bal Mukand father of the objector deposed that they were tenants of first mortgagee. That suit was dismissed by the trial Court but was decreed on 11-9- 1948 by Civil Judge, Dholpur in favour of second mortgagee holding the grand father and father of the objector to be the tenants of the mortgagee.