Gopal Krishan Vyas, J.@mdashInstant second appeal has been filed u/s 100, C.P.C. against judgment and decree dated 1.8.2005 passed by the District Judge, Dungarpur in Civil Appeal No. 30/1999, whereby, learned lower appellate Court reversed the judgment and decree dated 30.10.1999 passed by Addl. Civil Judge (Senior Division), Dungarpur in Civil Original Suit No. 3/1999 in a suit for redemption of mortgage. Brief facts of the case are that plaintiff-respondent preferred civil suit before the Addl. Civil Judge (Senior Division), Dungarpur for redemption of mortgage and possession of the shop and damages, in which, it was submitted that plaintiff owns a pucca shop at the site mentioned in para 1 of the plaint at Mathu Gamda Road, Dungarpur. Said shop was mortgaged with defendant-appellant on 5.6.1989 for Rs. 14,000/- and possession of the shop was given within stipulated time which was after six years period, the defendant-appellant shall take Rs. 14,000/- from the plaintiff and would hand over possession to him and, in the event of non-handing over possession, the defendant would pay damages.
2. As per the plaintiff-respondent, defendant has not complied with the conditions of mortgage and refused to hand over possession as also not taken Rs. 14,000/-, for which, notices dated 24.4.1995 and 5.4.1995 were given to him but the defendant by accepting the mortgage money. Upon aforesaid fact, it was prayed in the suit that decree for redemption of mortgage may be passed against the defendant by directing him to take the mortgage money of Rs. 14,000/- back and possession of shop may be ordered to be handed over to the plaintiff and, till possession is handed over, mesne profits at the rate of Rs. 50/- per day may be awarded.
3. In the suit, reply was filed by the defendant and, ultimately, after framing five issues, dismissed the suit vide judgment dated 23.10.1999. Being aggrieved and dissatisfied by the judgment dated 23.10.1999 passed by the trial Court, plaintiff preferred appeal u/s 96, C.P.C. before the District Judge, Dungarpur, Learned lower appellate Court, after taking into consideration entire evidence on record, set aside the judgment dated 23.10.1999 and while allowing the appeal vide judgment dated 1.8.2005 decreed the suit in favour of the plaintiff-respondent and passed the following decree:
4. Instant second appeal has been filed by the defendant-appellant being aggrieved and dissatisfied by the judgment and decree dated 1.8.2005 passed by the lower appellate Court. In this second appeal, it is prayed that finding of learned lower appellate Court for reversing the judgment and decree dated 23.10.1999 is erroneous because learned first appellate Court has not only directed the plaintiff to deposit the sum of Rs. 14,000/- in the Court within one month but has passed decree that possession of the shop shall be handed over by the defendant-appellant to the plaintiff-respondent and, further, directed that defendant shall make payment of mesne profits for the use and occupation of the suit shop at the rate of Rs. 1,500/- per month with effect from 11.4.1996 till the date of handing over possession.
5. Learned counsel appearing on behalf of appellant vehemently argued that upon perusal of the judgment of the lower appellate Court it will reveal that issue with regard to contention made by the appellant that he was tenant in the suit premises prior to execution of the mortgage-deed and issue No. 4 was framed for the said purpose; but, inspite of framing issue, both the Courts below did not decided the said issue that whether a tenant of the suit premises prior to execution of the mortgage-deed can hold possession even if decree for redemption has been passed in favour of the plaintiff. It was prayed that the matter may be remanded for trial and if this Court is not inclined to remand the case, then, question of tenancy of the appellant-defendant may be decided by this Court in this second appeal by framing substantial question of law.
6. Upon request made by both the parties, following substantial question of law was framed for consideration:
Whether the appellant was in the capacity of tenant prior to execution of mortgage deed and on that basis whether he can hold possession as tenant even if decree for redemption has been passed in favour of respondents by the appellate Court.
After framing above question, both the parties were heard for adjudicating the controversy.
7. Learned counsel appearing on behalf of the appellant contended that admittedly the defendant-appellant was tenant in the suit shop prior to execution of the mortgage-deed, therefore, as and when decree of redemption has been passed in favour of the plaintiff-respondent he will become tenant automatically and no possession can be taken from him on the basis of decree passed for redemption in the suit filed by the plaintiff. Soon after mortgage is redeemed, status of tenant is required to be restored and in pursuance of decree for redemption of mortgage the defendant-appellant cannot be dispossessed; but, in this case, learned first appellate Court has passed decree for giving possession also which is totally erroneous. Further, it is submitted that as per the plaintiffs case also, prior to execution of the mortgage-deed, the defendant-appellant was tenant in the premises, therefore, learned lower appellate Court ought to have considered this aspect of the matter and no order for taking possession was to be passed by the first appellate Court while deciding the suit in favour of the plaintiff.
8. Per contra, learned counsel appearing on behalf of the respondent-plaintiff vehemently argued that the defendant-appellant has no right to remain in possession of the shop as soon as decree for redemption of mortgage is passed by the lower appellate Court because after executing the mortgage-deed everything is required to be governed as per terms and conditions of the mortgage-deed and, in this case, upon perusal of the mortgage-deed, it will reveal that appellant-defendant himself agreed in para 1 of page 2 of the mortgage-deed that after expiry of the period, upon receiving the money for which mortgage-deed was executed, the defendant-appellant will hand over the vacant possession to the plaintiff owner of the shop. Therefore, argument of learned counsel for the appellant is totally baseless that he is entitled to be retained as tenant in the suit premises even if decree for redemption of mortgage is passed against him. In support of his contention, learned counsel for the respondent-plaintiff invited attention of this Court towards judgment of the co-ordinate Bench of this Court, reported in
9. I have carefully considered the submissions advanced by respective counsel upon the question of law framed in this second appeal.
10. Admittedly, the defendant-appellant was tenant in the suit shop and on 5.6.1989 a mortgage-deed, Ex. A/2 was executed in between the parties under which amount of Rs. 14,000/- was taken by the plaintiff from the defendant-appellant who was tenant in the shop and shop was given on mortgage to the defendant-appellant. Admittedly, a written mortgage-deed was executed on 5.6.1989, in which, certain condition were incorporated. The conditions enumerated in the said mortgage-deed, Ex. A/2 dated 5.6.1989 read as follows:
11. Upon perusal of the above conditions incorporated in the mortgage deed, Ex. A/2 dated 5.6.1989, it is revealed that the day on which the mortgage-deed was executed it was agreed by the parties that at the time of redemption of the mortgage, the defendant-appellant will hand over possession of the suit shop but, admittedly, he refused to accept the money and also refused to hand over possession, therefore, suit was filed and, unfortunately, the suit was dismissed by the trial Court but lower appellate Court while allowing the plaintiffs appeal for cogent reasons decreed the suit and, now, only question for consideration arises in this second appeal is whether after redemption of the mortgage-deed, the defendant-appellant became tenant or not. In my opinion, when terms and conditions are expressly enumerated in the mortgage-deed and it was agreed by the defendant-appellant that at the time of redemption of the mortgage he will hand over vacant possession of the suit shop, then, at this stage, the defendant-appellant cannot be permitted to act contrary to the terms and conditions of the mortgage-deed.
12. The above adjudication is well supported by the judgments of the coordinate Bench rendered in Chand Mal''s case (supra). In this view of the matter, the substantial question of law framed in this second appeal is answered in negative and it is held that in the suit for redemption of mortgaged property both the parties are under obligation to abide by the terms and conditions of the mortgage-deed and neither of the parties can deviate from the terms and conditions of the mortgage-deed and their status is that of mortgagor and mortgagee and none else. In view of the aforesaid, there is no force in this second appeal. The same is accordingly dismissed.
