The main legal point established in the judgment is the validity of the mortgage deed and the entitlement to mesne profits based on the rental rates over the years.

L.N.Mittal, J.

1. Sushil Kumar defendant no.1 having remained unsuccessful in both the courts below has filed the instant second appeal. Lajja Ram alias Laj Ram respondent no.1 filed suit against the appellant and his brother Vijay Kumar proforma respondent no.2 for possession of the shop by redemption of mortgage thereof alleging that the plaintiff after purchasing the suit land vide registered sale deed dated 18.6.1993 for Rs 24,000/- constructed disputed shop there and mortgaged it with possession with defendants vide registered mortgage deed dated 13.8.1993 for Rs 14,000/-. However, defendants on demand refused to accept the mortgage money and to redeem the mortgage. The plaintiff accordingly sought possession of the shop in suit by redemption of mortgage and also claimed Rs 2500/- per month as mesne profits from the date of filing of suit till delivery of possession. The defendants pleaded that they had taken the shop on rent from the plaintiff in august, 1993 at the rate of Rs 200/- per month rent and later on defendant no.2 left business and defendant no.1 alone has been doing the business in the shop in suit and has been paying rent regularly to the plaintiff, who, however, never issued any receipt. The plaintiff rather got the mortgage deed executed to deny protection of Rent Control Act to the defendants.

2. Learned Civil Judge (Junior Division), Panchkula vide judgment and decree dated 17.4.2009 decreed the suit for possession of the shop in suit by redemption of mortgage but relief of mesne profits claimed by the plaintiff was denied. Both plaintiff and defendant no.1 preferred appeals against judgment and decree of the trial court. Learned Additional District Judge, Panchkula vide judgment dated 22.10.2009 dismissed the appeal preferred by defendant no.1 but partly allowed the appeal preferred by the plaintiff and directed appellant-defendant no.1 to pay mesne profits to the plaintiff @ 1000/- per month from the date of institution of the suit till delivery of vacant possession thereof. Feeling aggrieved, defendant no.1 has preferred the instant appeal.

3. I have heard learned counsel for the appellant and perused the case file.

4. Learned counsel for the appellant vehemently contended that mortgage deed in question was a sham transaction and in fact defendants had taken the shop in dispute on rent. Reliance in support of this contention has been placed on two judgments of this Court namely Banarsi Dass versus Gian Chand, 2005 (1) PLR 127 and Narain dass versus Mulkh Raj Gulati, 2003 (3) PLR 443. However, both the judgments are completely distinguishable on facts. In those cases, plaintiff had lost in both the courts below and it was found as a matter of fact that the shop had been let out to the defendant and mortgage was a sham transaction. In the instant case, however, the plaintiff has succeeded in both the courts on this aspect and it was found as a fact that the mortgage deed is not a sham transaction and defendants were not inducted as tenant in the shop. Moreover in the case of banarsi Dass, shop valuing Rs 3 lacs to Rs 4 lacs located in a thickly commercial area of municipal town was allegedly mortgaged for Rs 17,000/- only. It was a material circumstance to hold the mortgage to be a sham transaction in that case. In the instant case, however, plaintiff himself purchased suit land for Rs 24,000/- and just after two months after constructing shop mortgaged it for Rs 14,000/-. So the mortgage amount is not heavily disproportionate to the value of the shop in the instant case. The concurrent finding of the courts below against the defendants on this aspect is based on appreciation of evidence and is not shown to be perverse or illegal.

5. In addition to the aforesaid, even defendant no.1 appellant himself admitted in cross-examination that the shop in suit had been mortgaged by plaintiff in favour of defendants vide registered mortgage deed Ex. P1 for rs 14,000/-. In view of the said admission made b