SHRINARAIN Vs. LACHHIRAM

JUDGEMENT

(1.) THE above three appeals arise out of suit No. 348 of 1964 instituted in the Court of Munsiff -Magistrate, Jaipur City (East), Jaipur by Lachhiram against Hari Narain, Shrinarain and Mohinuddin for redemption of a shop situated at Moti Cungari 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 a 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 mortgage 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.) AGGRIEVED by the decision of the trial Court Shrinarain filed appeal in the Court of District Judge, Jaipur City praying that he should be allowed interest on the amount of Rs. 500/ - spent by him for repairs and improvements on the shop in question. His appeal was registered as Appeal No. 87 of 1968. Lachhiram also filed appeal claiming that no amount should have been awarded to the mortgagee on account of repairs and improvements. He also contended that the finding of the trial Court that Shrinarain was the real mortgagee was erroneous and should be set aside. Lastly his prayer was that a decree for possession should have also been granted against the alleged tenant Mohinuddin. Lachhiram's appeal was registered as Civil Appeal No. 86 of 1968. Both these appeals have been disposed of by the learned Additional District Judge No. 2, Jaipur City by his judgment dated 10 -2 -1969. He has held in agreement with 'the trial court that the mortgage deed was executed in the name of Hari Narain only as Benami and the real mortgagee was Shrinarain. He also held that the mortgagee has proved that he had spent Rs. 500/ - for repairs and improvements of the mortgaged property, and that he was entitled to get this amount along with Rs. 265/ - as interest. As regards the prayer for ejectment against Mphinuddin the finding of the learned Additional District Judge is that the defendants had failed to prove that Mohinuddin had been inducted as a tenant in the suit shop and that in any case Mohinuddin was not entitled to protection available to a tenant under the Rajasthan Premises (Control of Rent and Eviction) Act 1950. In the result he partially allowed both these appeals and modified the judgment and decree of the trial court to this extent that the plaintiff would be entitled to redeem the property in question on payment of Rs. 451/ - as principal, Rs. 500/ -as costs of repairs and Rs. 265/ - interest thereon total Rs. 1216/ -. He also passed a decree for possession against all the defendants including Mohinuddin.