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2024 Supreme(P&H) 268
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Anil Kshetarpal, J.
Nirmal Singh – Appellant
Versus
Sohan Singh – Respondent
R.S.A.No. 421 of 1994
Decided On : 02-02-2024
For the Parties :Mr. Sanjay Majithia Senior, Advocate, Mr. Sumit Sinha, Mr. Rishabh Wadhera, Ms. Geetika Rani, Mr. A.S. Kalra
The redemption of a mortgage does not automatically extinguish the tenancy rights of the tenant, and the tenant's rights would remain unaffected.
Headnote:
decree - permanent injunction - Punjab Redemption of Mortgages Act, 1913 - Section 4
Fact of the Case:
The plaintiff filed a suit for grant of decree of permanent injunction to protect his possession of the land as a tenant. The trial court dismissed the suit for a portion of the land, and the first appellate court upheld the decision, stating that the plaintiff cannot claim tenancy rights after the property was redeemed.
Finding of the Court:
The court found that the judgments passed by both the courts below were erroneous and set them aside, decreeing the suit in its entirety for the plaintiff.
Issues: The issues involved whether the plaintiff was in possession of the suit land as a tenant, entitled to seek the relief of permanent injunction, had locus standi to file the suit, and had cause of action for filing the suit.
Ratio Decidendi: The court held that the plaintiff's tenancy rights would not stand merged on the creation of a mortgage, especially when the mortgage was in favor of others. The court also emphasized that the redemption of the mortgage would not adversely impact the plaintiff's tenancy rights.
Final Decision: The regular second appeal was allowed, and the suit filed by the plaintiff was decreed in its entirety.
Judgment
Mr. Anil Kshetarpal, J.
In this regular second appeal, the plaintiff assails the correctness of the concurrent findings of fact arrived at by the courts below wherein his suit was decreed for grant of decree of permanent injunction to the extent of land measuring 3 kanals and 11 marlas and dismissed qua the land measuring 8 kanals and 12 marlas.
2. In order to comprehend the issue involved in the present case, the relevant facts, in brief, are required to be noticed.
3. The plaintiff filed a suit for grant of decree of permanent injunction restraining the defendants from interfering in his possession with respect to the land measuring 12 kanals and 3 marlas as tenant. It is the case of the plaintiff that Sh. Ram Saran son of Sh. Badri, who was the original owner mortgaged the suit land in favour of Sh. Nirmal Singh son of Sh. Pritam Singh to the extent of ½ share and the other half share in favour of Sh. Jaisi alias Jai Singh and Sh. Tarlok Singh sons of Sh. Ujagar Singh. However, the plaintiff, namely, Sh. Pritam Singh continued in possession as tenant under Sh. Ram Saran. Subsequently, Sh. Ram Saran sold the property in favour of Sh. Sohan Singh vide registered sale deed dated 06.02.1987. Thereafter, Sh. Sohan Singh and Sh. Sukhdev Singh both sons of Sh. Diwan Singh have been threatening to dispossess the plaintiff.
4. The defendants while contesting the suit claim that the plaintiff never came in possession of the suit land and Sh. Ram Saran handed over possession to them. However, the defendants admitted that they were the owners of the suit land and they had deposited the mortgage money for redemption of the suit land.
5. On appreciation of the pleadings, the following issues were framed:-
“1. Whether the plaintiff is in possession of the suit land as tenant? OPP
2. Whether the plaintiff is entitled to seek the relief of permanent injunction as prayed for? OPP
3. Whether the plaintiff has no locus standi to file the present suit?
4. Whether the plaintiff has no cause of action for filing the present suit? OPD
5. Relief.”
6. The trial court dismissed the suit with respect to 8 kanals and 12 marlas of land on the ground that the plaintiff in rebuttal evidence has placed on file certified copy of the order passed by the Collector on 24.08.1987, which cannot be read in evidence on account of late production. The Court held that the plaintiff has proved possession of the land comprised in Rect. No.2, Killa No.561 (0-17) and Killa No.562(2-14). However, from perusal of the jamabandi for the year 1982-1983, the plaintiff is not reflected to be in possession as tenant of 8 kanals and 13 marlas of land comprised in Rect. No.2, Khasra No.563.
7. The plaintiff has filed the first appeal. Before the First Appellate Court, the plaintiff filed an application under Order XLI Rule 27 of the Code of Civil Procedure, 1908 for permission to lead additional evidence. He produced copies of khasra girdawari with respect to 22 crops to prove that he continues to be in possession of 8 kanals and 12 marlas also. However, the First Appellate Court failed to decide his application for additional evidence and dismissed the appeal on the ground that once the property was redeemed, the plaintiff cannot claim to be in possession as a tenant. The court held that the plaintiff have no right to create tenancy over the property in dispute. The court further held that perusal of the jamabandi for the year 1982-1983, reveals that Sh. Ram Saran was shown to be an owner in possession which was transferred in favour of Sh. Sohan Singh.
8. This Bench has heard the learned counsel representing the parties at length and with their able assistance perused the paper book.
9. The learned senior counsel representing the appellant contends that a bare perusal of the order passed by the Collector on 24.08.1987, in an application filed under Section 4 of the Punjab Redemption of Mortgages Act, 1913, it is evident that the possession of Sh. Pritam Singh as tenant is admitted. H
