R. S. A. No. 2116 of 2011 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2116 of 2011 (O&M) Date of Decision : May 16, 2011 Karam Chand .... Appellant Vs. Sardari Lal and another .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Malkeet Singh, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : C. M. No. 5902-C of 2011 : Allowed as prayed for. C. M. No. 5903-C of 2011 : Allowed as prayed for. C. M. No. 5905-C of 2011 : For reasons mentioned in the application, which is accompanied by affidavit, delay of 09 days in filing the appeal is condoned. Main Appeal : Defendant no.1 Karam Chand, who was successful in the trial R. S. A. No. 2116 of 2011 (O&M) 2 court, but has been unsuccessful in the lower appellate court, has filed the instant second appeal. Respondent no.1-plaintiff Sardari Lal filed suit against defendant no.1-appellant Karam Chand and defendant-respondent no.2 Pala Ram for possession of two shops alleging that defendant no.1 took the disputed shops from the plaintiff for his use and occupation for six years against payment of Rs.30,000/- as security. Defendant no.1 agreed to vacate the shops after expiry of six years commencing from 01.08.1996, on repayment of the security amount of Rs.30,000/-. However, defendant no.1 inducted defendant no.2 in one of the two shops as employee and handed over its possession to him without any right to do so. The aforesaid period of six years has elapsed, but defendant no.1 did not hand over vacant possession of the shops in spite of demand and offer of the security amount of Rs.30,000/- made by the plaintiff. Accordingly, plaintiff sought possession of the shops along with ancillary relief of permanent injunction. Defendants inter alia pleaded that defendant no.1 took the disputed shops on rent from the plaintiff and deposited Rs.30,000/- as security and has been paying Rs.200/- per month as rent. The period of six years was incorporated without consent of defendant no.1, who is not bound by the same. Defendant no.2 is only employee of son of defendant no.1 in one of the two shops. Other plaint averments were controverted. Learned Civil Judge (Junior Division), Phillaur, vide judgment R. S. A. No. 2116 of 2011 (O&M) 3 and decree dated 01.09.2009, dismissed the plaintiff's suit. However, first appeal preferred by the plaintiff has been allowed by learned Additional District Judge, Jalandhar, vide judgment and decree dated 23.11.2010 and thereby, plaintiff's suit has been decreed for possession of disputed shops on payment of Rs.30,000/- to defendant no.1. Permanent injunction has also been granted. Feeling aggrieved, defendant no.1 has preferred the instant second appeal. I have heard learned counsel for the appellant and perused the case file. Admittedly, agreement of mortgage was executed between the parties and according to the said agreement, the disputed shops were mortgaged with possession by the plaintiff in favour of defendant no.1 for Rs.30,000/- for six years. Execution of the said writing is not disputed even by defendant no.1-appellant. However, the said agreement is unregistered, although the mortgage deed required compulsory registration. Nevertheless the aforesaid document can be used for collateral purposes to depict that possession of defendant no1-appellant over the disputed shops was as mortgagee. Consequently, suit of the plaintiff has been rightly decreed on payment of mortgage money of Rs.30,000 to defendant no.1. Plea of defendant no.1-appellant, that the term of six years was incorporated in the document without his consent, cannot be accepted. Execution of the document by defendant no.1 is not disputed. The said term R. S. A. No. 2116 of 2011 (O&M) 4 is integral part of the document. Defendant no.1 cannot be heard to raise plea against contents of the document. Learned counsel for the appellant also vehemently contended that defendant no.1-appellant is tenant in the disputed shops and plea to this effect taken by defendant no.1 in the written statement has not been controverted as no replication was filed by the plaintiff. I have carefully considered the aforesaid contention, but the same cannot be accepted. The aforesaid plea by defendant no.1 in the written statement was in response to plaintiff's plea in the plaint that the shops were given to defendant no.1 against security of Rs.30,000/- through written document. Consequently, even if no replication was filed, it cannot be said that the plaintiff impliedly admitted the plea of tenancy raised by defendant no.1 in the written statement. Plaintiff's plea in the plaint is sufficient denial of the said plea of tenancy raised by defendant no.1 in the written statement. There is no cogent evidence on record to depict that defendant no.1 was inducted as tenant in the disputed shops. On the contrary, the aforesaid agreement to mortgage, which was admittedly executed between the parties, completely rules out the alleged tenancy. In addition to it, there is also no document to depict that defendant no.1 ever paid any rent to the plaintiff. In addition to the aforesaid, it has to be noticed with R. S. A. No. 2116 of 2011 (O&M) 5 significance that where Rent Control Act is applicable, the landlord may disguise the tenancy and camouflage it as mortgage to avoid applicability of Rent Control Act and to get the tenancy premises vacated as and when desired by the landlord. In the instant case, however, the disputed shops are situated in a Village, where Rent Control Act is not applicable. If the disputed shops had been let out to defendant no.1, there would have been no hitch for execution of rent note or rent deed regarding creation of tenancy because even in that event, plaintiff would have been at liberty to seek ejectment of the tenant from the shops by merely terminating the tenancy. Consequently, it cannot be said that in the instant case, defendant no.1 was inducted as tenant in the disputed shops and agreement to mortgage was executed to disguise and camouflage the tenancy. For the reasons aforesaid, I find no merit in the instant second appeal. Finding recorded by the lower appellate court in favour of respondent no.1-plaintiff is fully justified by the evidence on record including the admitted agreement to mortgage (Ex.P-2). No question of law, much less substantial question of law, arises for determination in this second appeal. Accordingly, the appeal is dismissed in limine. May 16, 2011 ( L. N. MITTAL ) monika JUDGE