1 RSA No. 407 of 1986 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH --- Regular Second Appeal No. 407 of 1986 Date of decision: 6.5.2009 Roshan Lal --- Appellant Versus Ram Kishan and others --- Respondents CORAM: HON’BLE MR. JUSTICE AJAY KUMAR MITTAL -- PRESENT: Mr. Ashok Aggarwal, Senior Advocate with Mr. Alok Jain and Mr. Piyush Bansal, Advocates for the appellant. Mr. Vishal Goel, Advocate for respondent Nos. 5 and 6. --- AJAY KUMAR MITTAL, J. This second appeal at the instance of the plaintiff has arisen out of a suit for possession by way of redemption. The plaintiff-appellant filed a suit for possession averring that he was owner of the house in dispute. The plaintiff mortgaged the said property, on 2.11.1955, in favour of defendant Nos. 1 to 4, initially, for a consideration of Rs. 2,000/-. He created a further mortgage on 2.3.1956 in respect of the same property for an additional sum of Rs. 1,000/-. As per the pleadings of the plaintiff, the mortgage amounts were to carry interest at the rate of 9% per annum and the amount of interest to be accrued thereon was to be adjusted 2 RSA No. 407 of 1986 towards the income received on account of rent. The mortgagees, i.e. defendant Nos. 1 to 4 rented out the said house to defendant Nos. 5 and 6 at a monthly rent of Rs. 100/-. It was further pleaded that defendant Nos. 1 to 4 had already realised an amount larger than the mortgage money of Rs. 3,000/-, from the rental income and it was on these premises, the plaintiff prayed for a decree for possession by means of redemption on payment of Re. 1/-. Two separate written statements were filed, one by defendant Nos. 1 to 4, and the other, by defendant Nos. 5 and 6. The former set of the defendants pleaded that defendant Nos. 5 and 6 had already been residing in the house in dispute with a payment liability of Rs. 100/- per annum and the factum of the rental value of the property to be adjustable towards the interest had been mentioned in the mortgage deed itself. It was denied that they had inducted defendant Nos. 5 and 6, at the rent of Rs. 100/- per month. It was further pleaded in plain words that at the time of execution of the mortgage deed, only the symbolic possession of the suit property had been passed on to the mortgagees as the latter were already in possession as tenants under the plaintiff. Defendant Nos. 5 and 6 came out almost with the same pleas, in their written statement filed separately. All that was additionally pleaded by them was that they had been in possession of the property as tenants right from the date of mortgage and their possession had never been disturbed; they had been regularly paying rent at the rate of Rs. 100/- per month to the mortgagees and in these circumstances, the plaintiff could not seek the relief of possession. The rival pleadings gave rise to the following issues: 3 RSA No. 407 of 1986 1- Whether the plaintiff has mortgaged with possession, the property in dispute in favour of defendant Nos.1 to 4 vide mortgage deed dated 2.11.1955 and 2.3.1956? OPP 2- Whether the plaintiff has handed over actual physical possession of the property in dispute to defendant Nos. 1 to 4 at the time of mortgaging the same vide above said mortgage deed? OPP 3- Whether defendant Nos. 1 to 4 have rented out the property in dispute at the rate of Rs. 100/- per month in favour of defendant Nos. 5 and 6 and have realised amount of mortgage and interest as alleged? OPP 4- Whether the plaintiff is entitled to redeem the property in dispute from the defendants. If so, on payment of what amount? OPP 5- Whether the present suit is not maintainable in the present form? OPD 6- Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD 7- Relief. The trial court decided issue No.1 in favour of the plaintiff and against the defendants as there was no challenge to the mortgage deeds. Issue Nos. 2 and 3 were decided against the plaintiff and in favour of the defendants. It was held that a sum of Rs. 100/- was being received as rent per year for the use and occupation of the property by defendant Nos. 5 and 6 as tenants. An amount of Rs. 80/- and Rs. 90/- were being accumulated for the sums secured vide mortgage deeds, 4 RSA No. 407 of 1986 Exhibit P-2 and P-3, respectively to be paid by the plaintiff on redeeming the land. The trial court while adjudicating issue No.4 also recorded a finding that a sum of Rs. 4999/- was payable by the plaintiff as interest. It was further held that after including the principal amount, the plaintiff was to pay Rs. 7,999/- for redemption of the mortgage which also, would be subject to the rights of defendant Nos. 5 and 6. Issue No.5 was answered in favour of the plaintiff. Under issue No.6, it was observed that since the possession of defendant Nos. 5 and 6 was presumed to be the possession of the plaintiff, the court fee on the jurisdictional value of Rs. 3,000/- was correctly paid. In result, the suit was decreed with costs vide judgment and decree dated 5.6.1985. It was directed that the plaintiff would deposit a sum of Rs. 7,999/- by 26.7.1985 to be payable to defendant Nos. 1 to 4 and the property in dispute would thereafter stand redeemed, however subject to the rights of defendant Nos. 5 and 6. The plaintiff felt dissatisfied with the findings of the trial court whereby it was directed that the property would stand redeemed subject to the rights of defendant Nos. 5 and 6, and consequently preferred appeal. The first appellate court, on re-appreciation of the evidence though concurred with the findings of the trial court on all vital aspects, but came to record a little different finding that defendant No.5 alone was the tenant in possession of the property in dispute and consequently, modified the decree of the trial court to that extent, vide judgment and decree dated 16.10.1985. Still dissatisfied, the plaintiff filed the present appeal. 5 RSA No. 407 of 1986 I have heard learned counsel appearing for the parties and have gone through the record with their assistance. It may be noticed in the first instance that the defendants had admitted the plaintiff to be owner of the property in dispute and they had at no stage challenged the mortgage deeds Exhibits P-2 and P-3 dated 2.11.1955, and 2.3.1956, respectively. The primary controversy between the parties that was hotly raised before the courts below and a pointed attention has been made before this Court also towards that aspect is whether defendant Nos. 5 and 6 were in possession of the property in dispute as tenants prior to the mortgage. The trial court held that both of them were in possession of the suit property as tenants whereas the first appellate court concluded that only defendant No.5 was the tenant in the suit property prior to the mortgage. Learned counsel appearing for the appellant vehemently submitted that findings recorded by the first appellate court that defendant No.5 was inducted as tenant prior to the mortgage is based on misreading and mis-appreciation of evidence and the same is liable to be set aside. The counsel could not show any illegality or perversity in the findings of fact recorded by the lower appellate court. A reading of the impugned judgment shows that there is no legal error therein which may persuade this Court to interfere with the findings recorded by the lower appellate court. After examining the submission in the light of the facts of the case, no substance is found therein. 6 RSA No. 407 of 1986 In view of the above, there is no merit in the appeal and the same is accordingly dismissed. There will be no order as to costs. (AJAY KUMAR MITTAL) May 06, 2009 JUDGE *RKMALIK*