The admissibility of oral evidence to show that a document was never intended to operate as an agreement and that a different transaction altogether was entered into between the parties.

Satish Kumar Mittal, J.

1. Narain Dass plaintiff has filed the instant Regular Second Appeal against the judgment and decree passed by both the Courts below vide which his suit for possession by way of redemption in respect of the shop in question was dismissed.

2. The plaintiff alleged that the shop in question, which is situated whitn the municipal limits of Rohtak was mortgaged to the defendants vide Mortgage Deed dated 28/30.6.1973 for an amount of Rs. 4000/- and the possession of the same was delivered to the defendants under the said mortgage. It was further alleged that as per the stipulation in the Mortgage Deed, the plaintiff was entitled to get the shop in question redeemed from the defendants as and when desired by him on making payment of the mortagage as amount. On refusal from the defendants from redeeming the aforesaid mortgage, the plaintiff filed the instant suit for recovery of possession of the aforesaid shop by a decree of redemption on payment of the mortgaged amount of Rs. 4000/-.

3. The defendants contested the aforesaid suit. They pleaded that they were in occupation of the shop in question as tenants at a monthly rent of Rs. 140/-, and since the shop in question is situated within the municipal limits of Rohtak, the suit filed by the plaintiff was not maintainable; and the only remedy available to the plaintiff was for resorting to the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973. It was further pleaded that the alleged mortgage deed was a sham and bogus transaction. Actually, the shop in question was rented out to them at a monthly rent of Rs. 140/- and Rs. 4000/- were paid by them to the plaintiff as security for payment of the rent of the shop in question.

4. On the pleadings of the parties, the trial Court framed the following issues;-

1. Whether the plaintiff mortgaged the shop in question in favour of the defendants as alleged in the plaint? OPP

2. Whether the defendants No. 1 and 2 are tenants in the shop in question as alleged in the preliminary objection of the written statement? OPD

3. Whether the civil court has got no jurisdiction to try the suit? OPD

4. Whether the plaintiff has no cause of action to file the suit? OPD

5. Relief."

5. On issues No. 1 and 2, both the courts below after taking into consideration oral well as documentary evidence available on the record, have recorded a concurrent finding of fact that actually the shop in question was rented by the plaintiff to the defendants and the alleged mortgage deed was a sham and bogus transaction. Issue No. 3 was held in favour of the plaintiff. Against this judgment and decree, the instant Regular Second Appeal has been filed.

6. I have heard the arguments of the learned counsel for the parties and have perused the record of the case.

7. Learned counsel for the appellant submitted that both the Courts below have completely ignored the Mortgage Deed (Ex.P1) which was a registered document. The execution of the said document between the parties has been duly proved. Learned counsel submitted that when this document on the face of it constitutes a mortgage, then the parties to this document are bound by the terms and conditions of the Mortgage Deed. When the terms and conditions of the agreement of the agreement were in writing, the Courts below should not have accepted the oral evidence led by the defendants to prove that actually the transaction in question was not a mortgage but it was a transaction of creating a tenancy, in view of the provisions of Section 92 of the Indian Evidence Act. I am unable to accept this contention of the learned counsel for the appellant. The inter-pretation of term and condition of a written document is something different than to the contention that the transacton recorded in the document was never intended to be acted upon between the parties and that the document was actually of a different nature. The Honble Supreme Court in Smt. Gangabai v. Smt. Chhabubai, A.I.R. 1