MADANLAL Vs. SURAJ KANWAR

JUDGEMENT

(1.) This second appeal under Section 100 CPC has been preferred by the appellant- Madanlal against the judgment and decree dated 31.1.91 passed by District Judge, Sikar, whereby the judgment and decree passed by Civil Judge, Sikar dated 25.8.80 in Civil Suit No. 7/78, as amended by order dated 5.9.85, was affirmed.

(2.) Brief facts of the case are that plaintiff-respondent Nos.1 and 2 instituted civil suit No. 7/78, against the remaining respondents, for redemption of mortgage and possession of the suit-property. During pendency of the civil suit, on the application filed by respondent-Thakur Girdhari Singh, three shops were let-out to different persons. Out of these shops, one shop was let-out to the present appellant in compliance to the trial court order-dated 19.10.78, however, in revision that order of letting out the shops was set aside by this court on 18.12.79. The civil suit was decided by trial court on 25.8.80 decreeing the suit for redumption of the mortgagee during subsistence of the mortgage, but no order was passed for delivery of possession in respect of the three shops, including the one let-out to appellant-Madanlal. Thereafter, plaintiff-respondents moved application on 17.5.83 in the original suit (No. 7/78) with a prayer that the judgment and decree dated 25.8.80 may be amended by mentioning therein that the three shops which were let-out to the appellant and other two tenants during pendency of the suit through Nazir, be ordered to be given to them. The said tenant-appellant filed an application under Order 1, Rule 10 CPC on 19.3.84 before trial court for being impleaded as a party, but the same was rejected on 2.1.84. Feeling aggrieved by the said order, appellant preferred revision-petition before this court, which was later-on dismissed as withdrawn. Thereafter, on 5.9.85 trial court accepted the application of the plaintiff and according to the prayer, amended the decree. Against that judgment, appellant-Madanlal preferred appeal before the District Judge Sikar, which was dismissed, hence this second appeal has been preferred by the tenant-appellant.

(3.) While admitting the appeal for hearing, this court on 3.7.92 framed substantial question of law about the status of tenants admitted by the mortgagee.