IMPORTANT POINT
Tenancy cannot assume character of mortgage.

Vineet Kothari, J.—The present second appeal has been filed by the appellant-plaintiff (landlord), Ram Chandra S/o Motilal Nandwana against the defendant-tenant-respondent, Beniram S/o Keshuji Raiger, who is now represented by his legal representatives, and being aggrieved by the judgment and decree dated 26.08.2002 passed by learned lower appellate court of Additional District Judge No.2, Chittorgarh dismissing the first appeal of the plaintiff-landlord being Civil Appeal No.17/2001- Ram Chandra Vs. Beniram and upholding the judgment and decree of learned trial court dated 05.10.2001 in Civil Suit No.51/93- Ram Chandra Vs. Beniram, which suit was filed by the plaintiff-Ram Chandra seeking eviction on the grounds of arrears of rent and permanent injunction against the defendant in respect of suit premises, situated at Kapasan, District-Chittorgarh. The said suit premises initially was let-out to the defendant-tenant, Beniram for a period of six months on 15.09.1989 for monthly rent of Rs.380/- per month.

2. The plaintiff-landlord (appellant herein) came with a case that the defendant-tenant has paid rent only up to 15.04.1990 and as on 15.07.1991, the arrears of rent of Rs.5,700/- were due to be paid and thus there was a default of more than six months in payment of rent. The plaintiff-landlord also raised pleas regarding nuisance caused by the defendant-tenant-respondent. The defendant-tenant filed his written statement before the learned trial court, in which though he admitted that the premises was let-out to him on 15.09.1989 for a monthly rent of Rs.380/- but he stated that since in the month of October, 1990, the plaintiff-landlord had stopped his electricity power supply to the suit premises, therefore, the defendant-tenant stopped the payment of rent and defendant could secure his power connection through court’s intervention on 22.01.1993 only; and he was doing business of tyre retreading in the said suit premises, which was let-out for commercial purposes only. In the special plea in the written statement, the defendant-tenant stated before the court below that on 09.11.1989, the plaintiff-landlord had actually mortgaged the suit premises in favour of defendant-tenant and had executed a registered mortgage-deed and, therefore, the defendant was in possession of the suit premises as a mortgagee; and in lieu of interest payable by the landlord mortgagor, rent payable by the tenant-mortgagee was adjusted and, therefore, there was no question of payment of any rent to the plaintiff-landlord and thus there was no default in payment of rent as claimed by the plaintiff-landlord.

3. The learned trial court below as per pleadings of the parties, framed as many as five issues with respect to the default in payment of rent and mortgage and after recording the evidence and taking the documentary evidence on record, partly decreed the suit on 05.10.2001 and while refusing the eviction decree, directed the defendant-tenant, Beniram not to block the entry of the plaintiff-landlord in the portion of the suit property through the entrance gate for having access to three rooms, latrine and bathroom in the said suit premises, which were in the possession of the plaintiff-landlord only.

4. Against the said judgment and decree of the learned trial court, the plaintiff-landlord preferred the first appeal before the learned Additional District Judge, No.2, Chittorgarh and that appeal was registered as Civil Appeal No.17/2001- Ram Chandra Vs. Beniram, which appeal, however, came to be dismissed by the learned lower appellate court on 26.08.2002 and the decree of learned trial court dated 05.10.2001 was affirmed; and thus both the courts below held against the plaintiff-landlord that since suit premises was mortgaged by the plaintiff-landlord in favour of defendant-tenant on 03.11.1989 by registered mortgage-deed, the plaintiff was not entitled to the eviction decree as against the defendant-tenant on the ground of default in payment of