A tenant inducted by a mortgagee loses tenancy rights upon mortgage redemption, absent a direct contract with the mortgagor.

ORDER :

J. C. DOSHI, J.

1. This Second Appeal under section 100 of the CIVIL PROCEDURE CODE , 1908 (for short “CPC”) challenges judgment and decree passed by learned Appellate Court, Bhuj, Kachchh in Regular Civil Appeal No.44 of 2009, whereby, learned Appellate Court allowed the appeal filed by original defendant and quashed and set aside judgment and decree delivered in Regular Civil Suit No.255 of 2004 by learned Principal Senior Civil Judge, Bhuj, by which learned Trial Court has allowed the suit of the plaintiff and declared that plaintiff is tenant of disputed property and defendant is forever not entitled to lease or rent suit premises to any other person except plaintiff and further defendant was directed to continue plaintiff as legal tenant.

2. For convenience, the parties are referred to their original status i.e. plaintiff and defendant.

3. Facts of the case are as under :-

3.1. Plaintiff has filed Regular Civil Suit No.255 of 2004 before the learned Principal Senior Civil Judge, Bhuj seeking declaration and permanent injunction on the ground that he is tenant of house no.7/5/102 on the Final Plot No.268, Survey No.1850 City Bhuj (“suit property”) since 1982. Right of the plaintiff being tenant has been accepted in various litigation. Plaintiff has paid rent regularly but defendant with greed trying to take up possession of suit property without following provisions of law. Upon such pleadings and setting up the cause of action to that effect, plaintiff has filed suit with following reliefs in para 6 of the suit (it in Gujarati, for better understanding it is translated in English) :-

“(1) It is humbly prayed that summons/notice be served to the Defendants to appear before the Ld. Court.

(2) It is humbly prayed that a legal Notification be issued, declaring that the suit property situated in Bhuj, Gumra Deli area, Municipal House No. 7/5/102, City Survey No. 1850, Town Planning Final Plot No. 268, bounded by the four directions as mentioned in Para-1 of the plaint is owned by the Defendant and the Plaintiff is a tenant; and that the Defendant does not possess the right to rent out the house in question to anyone other than the Plaintiff.

(3) It is humbly prayed that an injunction order be passed against the Defendant, restraining him from carrying out or commissioning any kind of construction in the house in question without the consent of the Plaintiff and without obtaining possession from the Plaintiff.

(4) It is humbly prayed that a standing order be issued, directing the Defendants to continue the Plaintiff as a tenant in accordance with the law.

(5) It is humbly prayed that this and all other relief that may be available as per law and facts be granted.”

3.2. Defendant filed written statement and denied right of the plaintiff with specific plea that suit property was mortgage property. Transaction between mortgagor and mortgagee came to end by consent decree in civil suit. The plaintiff was inducted in suit property by mortgagee. Plaintiff’s right to continue his possession end when mortgagee handed over suit property and therefore, there is no subsisting relationship between landlord and tenant between parties to the suit. Moreover, entire suit property has been destroyed in earthquake witnessed by the Gujarat State in the year 2001. The plaintiff can be at the most tenant of mortgagee and he cannot claim tenancy right over the open land.

4. Learned Trial Court after framing issues believed that plaintiff has proved his case and therefore, passed decree declaring plaintiff as tenant and further passed declaration that defendant has no right to rent premises except exclusively to plaintiff and plaintiff is tenant as per provision of law.

5. Being aggrieved by the said judgment passed by learned Trial Court, Regular Civil Appeal No.44 of 2009 was preferred by defendant before the learned Appellate Court under section 96 of CPC. Learned Appellate Court taking resort of various authorities believed no relationship of landlo