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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
AMIT RAWAL, J.
M/s Mohar Singh Ishwar Dayal Jewellers - Appellant
Vs.
Chuni Lal and others - Respondents
RSA No. 835 of 1987 (O&M)
Decided On : 19-09-2016
mortgage - possession of tenants - RSA No.835 of 1987 (O&M) - 11.05.1953 - 2. The questions for discussion arise in this second appeal are :- (i) Whether the appellant/plaintiff/mortgagor can seek possession of the tenants allegedly inducted by the mortgagee? (ii) Whether the tenants already in occupation of the premises can be directed to surrender possession to the mortgagee on redemption of the mortgage? 3. In order to answer the aforementioned questions, it would be apt to give a brief pre-face of the matter.
Fact of the Case:
The appellant-plaintiff sought possession of the tenants allegedly inducted by the mortgagee. The suit was contested on the grounds that the suit for possession was not maintainable as it tantamounts to ejectment of the tenants, who were in possession of the property much prior to the execution of the mortgage deed.
Finding of the Court:
The Court found that the tenants were in possession much prior to the mortgage deed and had continuously been paying rent to the mortgagors. The Court held that the possession of the tenants was not extinguished upon redemption of the mortgage, and the tenants' rights remained intact.
Issues: The main issues were whether the appellant could seek possession of the tenants inducted by the mortgagee and whether the tenants could be directed to surrender possession to the mortgagee on redemption of the mortgage.
Ratio Decidendi: The Court relied on the principle that attornment of mortgagee by the tenant does not clog the status of present tenancy, and on expiry of the mortgage, the tenant's status is again relegated as tenant of the mortgagor. The Court also emphasized that the possession of the tenants was not extinguished upon redemption of the mortgage.
Final Decision: The Court dismissed the second appeal, finding no illegality and perversity in the judgments and decrees passed by the Courts below, as they were based upon correct appreciation of evidence and no substantial question of law arose for consideration.
Amit Rawal, J.
C.M. No.7907-C of 2010
The application for impleading the legal representatives of deceased-respondent No.15 is allowed subject to all just exceptions. Registry is directed to carry out amendment to the memo of parties.
RSA No.835 of 1987 (O&M)
2. The questions for discussion arise in this second appeal are :-
(i) Whether the appellant/plaintiff/mortgagor can seek possession of the tenants allegedly inducted by the mortgagee?
(ii) Whether the tenants already in occupation of the premises can be directed to surrender possession to the mortgagee on redemption of the mortgage?
3. In order to answer the aforementioned questions, it would be apt to give a brief pre-face of the matter. The appellant-plaintiff instituted a suit for redemption of the mortgage dated 11.05.1953, Ex.P13. The mortgagor was none else but the appellant and the mortgagee was Nathe. On 11.05.1953, the plaintiff No.1-Khichu Mal and his brother Nanak Chand mortgaged the shop mentioned as per the site plan attached with the suit to Nathe son of Jaisukh @ Ghosi, resident of village Mohla, Tehsil Ballabhgarh, Distt. Faridabad for a sum of Rs.7350/-. Later on, Nathe had expired and his heirs, defendant Nos.3 to 13 have been impleaded as parties. The terms and conditions of the mortgage deed as borne out from true translated copy of the mortgage deed are as under:-
“The possession of the shop has been physically handed over to the mortgagee. The mortgagee will have right to use the shop in question as his own or to let out the same to anyone till he is in possession of the same as mortgagee. The terms and conditions of the mortgage deed as follows:-
1. The rent and interest of the mortgage amount is equal.
2. The repairs of the mortgage property will be done at out costs and expenses and if we do not repair the same, the mortgagee will get the same repaired from his pocket and the genuine amount in the accounts of repair will be paid to mortgagee at the time of the redemption of the mortgage.
3. The time the mortgagor will pay the entire amount of mortgage money to the mortgagee the shop in question will be redeemed and will take the possession back and mortgagee will have also right to recover the mortgage amount in case of any fault in us from out properties of any kind.
4. In case the mortgagee is dispossessed from the shop or any part of it due to any cause, the mortgagee will have right to recover the mortgage amount and other claims from our properties of all kinds.
5. The terms and conditions of the mortgage have now been final.
6. In case of any claim by any person regarding the shop in question we shall be responsible. Therefore, these contents of this day of mortgage deed within Abadi along with physical possession are executed so as the same will be used as evidence in future.”
4. From the averments in the plaint that Nathe had transferred mortgagee rights to defendants No.1 and 2 on 26.03.1959 and defendant Nos.14 and 15, Lokman Dass and Raghubar Dayal and heirs of their brother Ramesh Chand, defendant Nos.19 to 24 and daughters of Kirpa Ram, defendant Nos.16 to 18, had been made parties to the suit in order to avoid any controversy. On repeated requests to the defendants and heirs of Nathe to redeem the aforementioned mortgaged property after receiving the mortgage money and to put the plaintiffs in possession and on refusal, despite having sent registered notices, the present suit was filed by depositing the amount of Rs.4285/- as Court fees.
5. The aforementioned suit was contested by the contesting defendants on the plea that suit for possession was not maintainable as it tantamounts to ejectment of the tenants, who were in possession of the property much prior to the execution of the mortgage deed and thus, the suit was not maintainable as barred in view of the provisions of Haryana Urban Control of Rent and Eviction Act, 1973. It was further submitted that they were tenants under the mortgagors i.e. plaintiffs and defendant No.25 to 31 and
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