1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. ::: JUDGMENT Madan Lal. vs. Mahesh Prakash and others. S.B.CIVIL FIRST APPEAL NO.216/1998 UNDER SECTION 96 CPC AGAINST THE JUDGMENT AND DECREE DATED 7.8.1998 PASSED BY SHRI CHANDER PRAKASH NAHAR, ADDITIONAL DISTRICT JUDGE, NIMBAHERA IN CIVIL SUIT NO.231/1992. DATE OF JUDGMENT ::: 10.1.2008 PRESENT HON'BLE MR. PRAKASH TATIA, J. Mr.MC Bhoot, for the appellant. Mr.JK Bhaiya, for the respondents. - - - - - BY THE COURT: Heard learned counsel for the parties. This regular first appeal is against the judgment and decree dated 7.8.1998 passed by learned Additional 2 District Judge, Nimbahera in Civil Original Suit No.231/1992 preferred by defendant/appellant. Brief facts of the case are that the plaintiff/ respondent no.1 filed a suit for redemption of mortgaged property described in para no.1 of the plaint which was mortgaged with the defendant no.2. The property was mortgaged initially on 29.9.1983 on advancement of loan of Rs.40,000/- by the defendant no.2 to the plaintiff. The plaintiff took further loan of Rs.20,000/- and, therefore, another mortgage deed was executed on 14.2.1984. The above transactions of mortgage dated 29.9.1983 and 14.2.1984 have been admitted by both the defendants in the written statement itself. The defendant no.1 – husband of the defendant no.2, was impleaded as party in the suit as according to the plaintiff, the defendant no.2 handed over possession of the property to the defendant no.1, husband of defendant no.2 - mortgagee, who is running his business in the said property. The plaintiff before filing of the suit for redemption of mortgage served a registered notice upon both the defendants which was dated 1.10.1991 and that notice was not replied by either of the defendants. The defendants no.1 and 2 both submitted separate written statements. The defendant no.1, husband of the mortgagee, in 3 his written statement stated that initially he was tenant in the shop in dispute on rent of Rs.450/- per month and was running the shoe shop and at the time of mortgage, it was agreed by the plaintiff that after redemption of mortgage, the tenancy of the defendant no.1 will continue. The defendants no.1 and 2 both took the plea that the actual physical possession was not delivered to the mortgagee by the mortgagor under the mortgage referred above as defendant no.1 was already in possession of the suit property as mortgagor's tenant. In view of the stand taken by both the defendants of continuation of tenancy of the defendant no.1 even if suit for redemption of the mortgage is decreed by the Court, the plaintiff cannot take possession of the property from the defendant no.1 as defendant no.1 cannot be evicted without determination of the defendant no.1's tenancy and without obtaining decree on the basis of grounds which are required to be proved under State Rent Act. In view of the fact of mortgage being admitted by both the defendants in the trial court, only issues framed were whether the defendant no.2 was in occupation of the suit premises as tenant prior to mortgage in question and was doing his shoe business in the shop. Second issue has also the same factual foundation and it is whether the possession of the suit property was not delivered to the mortgagee/defendant no.2 under the mortgage and, 4 therefore, the plaintiff is not entitled to decree for possession. In the trial court, the plaintiff gave his statement and produced the copy of the mortgage deeds Ex.1 and 2, copy of notice dated 1.10.1991 which was given by the plaintiff to the defendants as Ex.3, copy of acknowledgment receipts as Ex.4 and Ex.5 by which the notice was served upon both the defendants. The defendants no.1 and 2 both appeared in the witness box and gave their statements and produced one witness DW3 Khalil. The trial court after considering the evidence of the parties in detail held that the defendants failed to prove that the defendant no.2 was in possession of the suit property as tenant prior to mortgage and while deciding the issue no.2 held that the defendants also failed to prove that on the date of mortgage, possession was not handed over to the defendant no.2/ mortgagee and consequently, decreed the suit of the plaintiff vide judgment dated 7.8.1998. Being aggrieved by the judgment and decree dated 7.8.1998, the appellant/defendant no.2 has preferred this appeal. The defendant no.2 died during pendency of the suit and her legal representatives were taken on record. Learned counsel for the appellant vehemently 5 submitted that the appellant was tenant in the suit shop and was in occupation as tenant and was paying rent to the mortgagor Madan Lal at the rate of Rs.450/- per month. A rent deed was also executed on a stamp paper of Rs.5/-. The plaintiff/respondent after mortgage instructed the appellant/defendant to pay the rent at the rate of Rs.450/- per month to his wife – defendant no.2. Admittedly, the defendant/mortgagee is not in possession of the suit property, therefore, the trial court should not have passed the decree for possession of the suit property on redemption and on payment of Rs.6,000/- by the plaintiff to the defendant/mortgagee. It is also submitted that from the statement of the plaintiff himself, it is proved that at the time of mortgage, the defendant/appellant was in possession of the suit property, therefore, the plaintiff was not in position to deliver actual physical possession of the property to the defendant/ mortgagee at the time of mortgaging the property in dispute to the defendant no.2. Learned counsel for the respondent/plaintiff supported the judgment of the trial court and vehemently submitted that the entire story set up by the defendants is absolutely false. The defendants neither pleaded complete facts about their tenancy nor produced any evidence in proof of their this plea that 6 the defendant no.1 was tenant in the suit shop prior or at the time of mortgage of the suit property by the plaintiff to the defendant no.2. I considered the submissions of learned counsel for the parties and perused the reasons given by the trial court in the impugned judgment as well as the record. Since the mortgage of the property by the plaintiff with the defendant no.2/respondent no.2 (now deceased) is admitted fact, there is only plea that the defendant no.1 was tenant in the property in dispute prior to creation of mortgage by the plaintiff. This plea includes both facts – one that the defendant was in occupation as tenant and another that since the defendant no.1 was in occupation of the suit property, therefore, actual physical possession was not delivered to the defendant no.2/mortgagee by the plaintiff/ mortgagor. Both the defendants in their written statement nowhere pleaded that from which date or year, the defendant no.1 was tenant in the suit shop. There is no mention that any rent deed was ever executed for this tenancy between the plaintiff and the defendant no.1. The defendants no.1 and 2 both in their written statement stated that the defendant no.1 was running the shoe shop in the property in dispute. In the 7 evidence, the defendant no.2/mortgagee contradicted her own pleadings as well as specific pleadings of the defendant no.1 – her husband. She in her statement in the trial court stated that her husband was doing the business of “namkin” since last 15-20 years. She further admitted that from the time of registry (i.e. mortgage), her son is doing business in the suit shop. In cross examination, she further stated that when she took the shop obviously as mortgagee, the suit shop was vacant and thereafter, her son started business in the suit shop. In addition to the above, she clearly stated that the plaintiff came to her for getting the suit property redeemed but at that time, the suit property was not in her possession and it was in possession of her son and, therefore, the mortgaged property was not redeemed. In view of the statement of mortgagee herself, it is clear that she admitted that at the time of mortgagee, the suit shop was vacant and, therefore, the plea taken by the defendant no.1 – her husband that he was already in occupation of the suit shop as tenant appears to be absolutely false plea. However, in her statement, the defendant no.2, even after stating, as stated above, tried to improve herself by saying that at earlier time, her husband Madan Lal was running the “namkin” shop in the suit shop and thereafter, the shoe shop was started by her son. This statement of DW1 8 mortgagee is contrary to her own statement and, therefore, appears to be false statement only. The statement of defendant no.1/appellant - alleged tenant in the suit shop and husband of the defendant no.2 is sufficient to destroy the case of both the defendants. The defendant no.1 in his cross examination admitted that he never run the shoe shop and he from the beginning and till the time of his statement was running the shop of “namkin”. He further specifically admitted that his son Devendra was running the suit shop on instruction of her wife – defendant no.2. Then the defendant no.1 tried to improve by saying that his son was running the suit shop for the defendant no.1. Then again, he contradicted his own statement by saying that he himself never run any shoe shop in the shop in dispute and he only run the shop of “namkin”. The above two statements were sufficient for deciding both the issues against both the defendants. In addition to the above, the defendant though not took the plea that any rent deed was ever executed for the tenancy between the plaintiff and the defendant no.1 but in his statement in the Court, stated that the rent deed was also executed on stamp of Rs.5/-. Said rent deed was not produced by the defendants nor it was summoned if it was in possession of the plaintiff. The defendants failed to produce any rent receipt by which the defendant no.1 might have paid the rent to the 9 plaintiff prior to creation of mortgage in favour of the defendant no.2. The defendant in cross examination stated that for rent deed, a stamp was purchased by one Mishri Lal Babel, he has not been produced by the defendant as witness. He further stated that he got the rent deed written by one Kishan Rao. Said Kishan Rao was also not produced by the defendants. The defendant no.2' statement with respect to said purchase of stamps for execution of rent deed and writing of deed by Kishan Rao were also in contradiction to the statement of his own witness DW3 Khalil. In substance, this is case of no evidence in support of defence taken by the defendants. This is a case where mortgage is admitted fact and there is no other factual or legal ground raised by the appellant on the basis of which they could have resisted the decree for redemption of mortgage as granted by the court below. In view of the above reasons, this appeal of the appellant, having no merits, is hereby dismissed with costs. (PRAKASH TATIA), J. S.Phophaliya