Mr. Rajiv Narain Raina, J.:- This order will dispose of RSA No.1682 of 2010 and CR No.7062 of 2011 as both the cases are interconnected and between the same parties. The facts are taken from RSA No.1682 of 2010 for convenience.

The substantial question of law framed by this Court on 8th February, 2011 while admitting the appeals seeking an answer reads : -

“Whether the finding of the courts below that defendant-appellant is not tenant in the disputed shop and that he is only mortgagee therein is perverse and illegal and is based on misreading and miss-appreciation of evidence and is therefore, not sustainable in law?”

2. The contention of both the parties was noticed when the substantial question of law was framed which reads : -

“ Heard.

Learned counsel for the appellant inter alia contended that plaintiff is in continuous possession of the disputed shop since the year 1992 as also admitted by the plaintiff in his cross-examination and his possession was not interrupted since 17.10.1997 till 28.10.1997. It is also pointed out that sale deed dated 17.10.1997 in favour of plaintiff-respondent is for Rs.50,000/- only whereas the disputed shop is alleged to have been mortgaged with the defendant-appellant for Rs.2,40,000/- on 28.10.1997. It is contended that defendant-appellant in fact tenant in the disputed shop.

On the other hand, learned counsel for the respondent contended that the defendant-appellant in his income tax returns has depicted the disputed shop to be under mortgage with him. Counsel for appellant, however, contended that even payment of rent by appellant to respondent has been depicted in accounts book of the appellant. Learned counsel for the appellant contended that even payment of rent has been depicted in capital account and not in revenue account. Following substantial question of law arises for determination in the instant second appeal.”

The case on the Facts.

3. This is defendant’s second appeal. The plaintiff’s suit for possession by way of redemption of mortgage dated 28th October, 1997 succeeded on 4th May, 2005 in Civil Suit No.63 of 5th February, 2003. The defendant’s appeal failed on 14th January, 2010 by appellate decree. By a separate order of even date, the defendant-appellant’s application under Order 41 Rule 27 CPC seeking permission to allow him to lead additional evidence has been dismissed. Even in the court of first instance, the defendant had filed an application on 1st February, 2006 for leave to produce additional evidence through which it was sought to be proved that the defendant was a tenant in the suit premises. The dispute between the parties is whether the parties were in a relationship of mortgager and mortgagee or of landlord and tenant.

4. The plaintiff asserts that the relationship is one of mortgager and mortgagee. The defendant denies the relationship and claims that he is a tenant in the demised ground floor premises run as a chemist shop by the defendant. The documents on which reliance is placed by way of additional evidence are part of municipal record being Annexures A-1 to A-4. The remaining are tax returns, account books etc. Annexure A-1 is a leaf from the Assessment Register maintained under Rule VII-2 of the Municipal Rules in Form T.S.1. It relates to the year 1998-99. Plaintiff Inder Kumar is the owner of suit property numbered B-II, 729/1 which is a commercial shop measuring 20' x 20'. In the column of name and address of occupier, it is recorded, “one shop of medicine on rent @ Rs. 4000/- per month”. The amount of proposed tax and final assessment are recorded in Annexure A-1.

5. Annexure A-2 is the House Tax Notice for the year 1998-99 dated 8th June, 1998 issued by the office of Municipal Council, Sunam, addressed to plaintiff Inder Kumar. The property is described as commercial/rented and “self-occupied” but shown “on rent one shop at Rs. 4000/- per month”. The total house tax payable is assessed at Rs. 8565/-. The document is signed by the Executive