RAJASTHAN HIGH COURT

                                          Shambhu Dayal

                                                  Vs.

                                   Shivcharan Lal, (Rajasthan)

                        S.B. Civil Revision Petition No. 1473 of 1999

                                          (A.C. Goyal, J.)
                                       19.01.2004

                                            JUDGMENT

A.C. Goyal, J.

1. This S.B. Civil Revision Petition is preferred against the order dated 17.9.1999,
whereby learned Additional District Judge, Dholpur while setting aside the order of
Civil Judge (Senior Division), Dholpur, passed on 20.2.1997, allowed Civil Misc.
appeal and dismissed the application of the objector-tenant filed under Order 21 Rule
36 C.P.C.

2. The brief facts giving rise to the revision are that the shop in question is located in
the town Badi. The non-petitioner/decree-holder's (hereinafter referred to as the
'decree-holder') grandfather Jhinguria Ram and father Chhidda Lal were owners of this
shop. According to the decree-holder, three shops including the shop in question were
mortgaged by his grand-father and father with possession to Khacchi Lal Heera Lal
(hereinafter referred to as 'the first mortgagee'), on 31.3.1928 by registered mortgage
deed. Thereafter the shop was re-deemed and re-mortgaged on 27.4.1947 to Kalua
Ram Badri Prasad (second mortgagee) and possession of the shop was handed over to
them by the first mortgagee. Mortgage-deed was registered on 2.5.1947 in favour of
second mortgagee. It is also the case of decree-holder that ancestors of the
petitioner/objector were inducted as tenants in this shop during the year 1946 by first
mortgagee and on subsequent mortgage in favour of the second mortgagee, they
became the tenants of the second mortgagee. Thereafter Civil Suit No. 38/1982 was
filed for redemption of the mortgage against the judgment debtor-non-petitioner No. 2
Shri Ram Babu, who is son of second mortgagor Shri Badri Prasad. Final decree in
redemption suit was passed in favour of the decree-holder vide judgment dated
9.8.1991. An execution application was filed by the decree-holder and on issuance of
warrant for possession in that execution case No. 3/91, the petitioner/objector filed
objections under Order 21 Rule 36 C.P.C. with the averments that this shop was let out
to his grand- father Murlidhar and father Bal Mukand by mortgagor Sri Jhinguria Ram
and Chhida Lal at monthly rent of Rs. 2/- in Samvat Year 1996 (in the year 1939) and
thereafter the rent was enhanced to Rs. 20/- p.m. and when this shop was mortgaged
in favour of Kalwa Ram Badri Prasad on 27.4.1997 for a sum of Rs. 6500/-, Sarva
Shri Murlidhar Bal Mukund were occupying the shop as tenants and after their death
the petitioner became the tenant. It was also stated by the petitioner that the second
mortgagee Kaluwa Ram Badri Prasad filed suit No. 88/47 for eviction against the
tenants vis Murlidhar Bal Mukand wherein the mortgagors Jhinguria Ram Chhida Lal
were also made as defendants making it clear that the shop was on rent prior to
27.4.1947 and thus in a final decree of redemption and possession obtained by the
decree-holder against the judgment debtor, physical possession of the shop cannot be
obtained form the tenant.

3. The decree-holder filed reply to the objections denying the possession of the
objector/petitioner as a tenant of the decree-holder or his grand-father and father the
mortgagors with a plea that the ancestors of the objector were inducted as tenants in
the year 1946 by the first mortgagee and on redemption of the shop, the mortgage
money was paid by second mortgagee to the first mortgagee and thus the grand-father
and father of the objector-petitioner became the tenant of the second mortgagee. It was
also stated that the second mortgagee had filed a suit bearing No. 88/1947 for eviction
against the grand-father and father of the objector wherein Sri Bat Mukand father of
the objector deposed that they were tenants of first mortgagee. That suit was dismissed
by the trial court but was decreed on 11.9.1948 by Civil Judge, Dholpur in favour of
second mortgagee holding the grand-father and father of the objector to be tenant of
the mortgagee.

4. Learned Civil Judge (Senior Division), Dholpur, recorded the evidence of the
objector as well as the decree-holder and thereafter vide order dated 20.2.1997,
allowed the application of the objector filed under Order 21 Rule 36 C.P.C. with a
direction that the decree-holder can obtain only symbolic possession of the suit shop.

5. The decree-holder filed Civil Misc. Appeal No. 40/98 (28/97) and the same was
allowed vide impugned judgment dated 17.9.1999, and thus the present revision by
the objector-tenant.
6. I have heard teamed counsel for the parties. As per Section 115 C.P.C. the High
Court may call for the record of any case which has been decided by any Court
subordinate to such High Court and in which no appeal lies thereto and if such
subordinate Court appears-

       (a) to have exercised a jurisdiction not vested in it by law; or

       (b) to have failed to exercise a jurisdiction so vested; or

       (c) to have acted in the exercise of its jurisdiction illegally or with material
       irregularity;

the High Court may make such order in the case as it thinks fit.

7. The Provisions of Order 21 Rule 36 C.P.C. are as under:-

       "36. Decree for delivery of immovable property when in occupancy of tenant. -
       Where a decree is for the delivery of any immovable property in the occupancy
       of a tenant or other person entitled to occupy the same and not bound by the
       decree to relinquish such occupancy, the Court shall order delivery to be made
       by affixing a copy of the warrant in some conspicuous place on the property,
       and proclaiming to the occupant by beat of drum or other customary mode, at
       some convenient place, the substance of the decree in regard to the property."

8. Now the question for consideration is whether the objector-tenant is entitled to
retain the possession as tenant and not bound by the final decree of redemption passed
on 9.8.1991 ?

It is not in dispute that second usufructuary mortgage was created on 27.4.1947 in
favor of the second mortgagee and the mortgage deed was registered on 2.5.1947. It is
also not in dispute that the grand-father and father of the objector were tenants in this
shop prior to April, 1947. According to learned counsel for the objector-petitioner if it
is proved that the petitioner-objector is tenant of the mortgagors, he can not be evicted
in execution of this decree. He placed reliance upon Gopalan Krishnakutty v.
Kunjamma Pillai Sarojini Amma and others, 1, wherein it was held that in case of
usufructuary mortgage of the leased premises created by lessor in favour of lessee,
automatic merger of the interest of lessee with that of mortgagee and surrender of the
lease can not be inferred so as to entitle the lessor- mortgagor to recover possession of
the premises. Similar view was taken by Hon'ble Supreme Court in Narayan Vishnu
Herdre & Ors. v. Baburao Savalaram Kothawala since deceased by his heir Anant
Baburao Kothawale, 2 and in Nand Lal and others v. Sukh Dev and another,3 It is
significant to say here that according to the facts of these three cases the premises
were mortgaged to the tenants and thus on redemption of mortgage, it was held that
the tenancy rights of the mortgaged tenancy would continue and as such the owner is
not entitled to recovery of physical possession. Per contra, learned counsel for the
decree-holder contended that the Appellate Court has rightly held that the ancestors of
the petitioner-objector were inducted as tenants by the first mortgagee and not by the
mortgagors and thus the objector is bound by this decree and is liable to be evicted.
He placed reliance upon Jadavji Purshottam v. Dhami Navnitbhai Amaratlal and
Others, 4 wherein it was held that the mortgagee in possession of the mortgaged
property was not empowered to create lease which would be binding on mortgagor and
after redemption of mortgage, the tenant inducted by mortgagee is liable to be evicted.
While taking similar view, this Court in Devkinandan and another etc. v. Roshan Lal
and Others etc., 5 held that a tenant of a mortgagee in possession is not entitled to the
protection of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950, against
the mortgagor after the redemption of the mortgage.

9. Now the crucial point as to whether the grand-father and father of the objector were
inducted as tenants by the mortgagors as claimed by the objector or by first mortgagee
as pleaded by the decree-holder ? In para 3 of the application under Order 21 Rule 36
C.P.C. it is pleaded by the objector that it were the mortgagors who let out the shop to
Murlidhar Bal Mukand in Samvat 1996 (in the year 1936) at monthly rent of Rs. 2/-,
and thereafter the rent was enhanced to Rs. 20/- p.m. In para 3 of its reply, it was
admitted that the grand-father and father of the objector were admitted as tenants in
the suit shop in the year about 1946 with a specific plea that in all four shops
including the suit shop were usufructuary mortgaged on 31.3.1928 to Khichi Lal
Heera Lal and on redemption of this mortgage this shop was re-mortgaged with
possession in favor of second mortgagee and the tenancy continued.

10. Learned Civil Judge relying upon Ex.1 and Ex.2 rent-receipts, said to be issued by
grand-father of the decree-holder in favor of tenants Murlidhar Bal Mukand came to
this conclusion that they were tenants of the mortgagors. It was also held that the
original mortgage deed dated 31.3.1928 has not been produced and its copy Ex.A.13,
is not admissible in evidence and thus allowed the objections under Order 21 Rule 36
Civil Procedure Code. The First Appellate Court observed that both the receipts Ex.1
and Ex.2, said to be executed respectively on 15.5.1940 and 12.6.1942 are not reliable
at all.
11. Having considered both the judgments as well as the evidence, I find no
reasonable ground to interfere with the findings of the first appellate court on this
point. According to the learned counsel for the objector-petitioner the decree-holder is
not entitled to take physical possession of the shop even if execution of these two rent
receipts is not proved as it is the case of the decree-holder that the ancestors of the
objector were inducted as tenants by first mortgagee but the objector is being evicted
in a decree not on the basis of redemption of first mortgage but in execution of the
decree of redemption passed against the second mortgagee. It was also submitted that
though a decree of eviction was obtained by the second mortgagee against the tenants
but that decree was not put into execution. Learned counsel for the decree- holder
contended that the second mortgage was created in April 1947 while it is the case of
the objector himself that his ancestors were inducted as tenants in the year 1939 and at
that time this shop was in possession of the first mortgagee and on redemption of the
first mortgage the mortgage money was paid by the second mortgagee and this shop
came to the possession of second mortgagee and thus the ancestors of the objector
were first tenant's mortgagee and on redemption of first mortgage and creation of
second mortgage, they became tenants of second mortgagee and at no point of time
they were inducted as tenants by the mortgagors and thus the objector is liable to be
evicted. It was also contended that Ex.A.13 is the certified copy of the earlier
mortgage deed and since the original mortgage deed was not available the trial court
granted permission to lead secondary evidence and no objection was raised at the time
when Ex.A.13 was admitted in evidence. In the alternative, it was submitted that first
mortgage has been admitted by Sri Bal Mukand father of the objector.

12. I have considered the rival submission in the light of the judgments cited
hereinabove and the evidence. AW1 Shambhu Lal objector in his entire statement
deposed about two receipts Ex. 1 and 2 only and the first appellate court rightly
observed that he had no knowledge about execution of these two receipts. Regarding
first mortgage he pleaded ignorance. He also pleaded ignorance about redemption of
first mortgage. Similar is the passion of the statement of AW2 Vishva Nath Sharma.
His statement was recorded on 19.1.1985 and at that time his age was 72 years and
thus in the years 1940, 1941, his age was about 17 years and thus his statement that
Murlidhar grand-father of the objector paid rent to Sri Jhinguria Ram mortgagor in the
years 1940, 1941 in his presence was rightly disbelieved by the first appellate court.
As a matter of fact, it is not reliable that he would remember these facts after a period
of 55 years. AW3 Bhullu alias Bholu, whose statement was recorded on 19.1.1995,
stated his age to be 65 years. Thus his statement that mortgagor Jhinguria Ram
demanded rent from Murlidhar about 40 years ago was rightly disbelieved. Similarly
AW4 Ahmad also stated about the facts of payment of rent, in the year about 1940-45.
NAW1 Ram Nath Bansal is an Advocate. He stated about some litigation regarding
the shop between the parties and their ancestors. NAW2 Shiv Charan is decree-holder
and son of mortgagor Chhida Lal. He supported his case as pleaded in reply to the
application under Order 21 Rule 36 Civil Procedure Code. According to his statement
the ancestors of the objector were inducted as tenants since 1946 i.e. prior to the
second mortgage. He has also stated about earlier litigations with regard to the suit
shop. NAW3 Ram Babu is the son of second mortgagee Badri Prasad. He stated that
the shop in question was on rent with Murlidhar Bal Mukand prior to creation of
second mortgage. The statements of NW4 Ram Nath and NAW5 Zille Hassan are not
relevant on the point of tenancy. Now, documentary evidence is taken up. Ex.A.4 is
copy of the plaint filed by second mortgagee against the tenants Murlidhar Bal
Mukand and the mortgagors Jhinguria Ram Chhida Lal in the year 1947. The contents
of Para No. 2 are relevant wherein it is pleaded that the shop in question was on rent
prior to the creation of second mortgage and now the tenants have no concern with the
earlier mortgagee as they are now the tenants of the second mortgagee and in Para 4 it
has been pleaded that now the shop is required by the plaintiff as there is usufructuary
mortgage in favour of the second mortgagee. Ex.A.1 is copy of the written statement
of Ex.A.4 plaint filed by grand-father and father of the objector. Issue No. 1 was
framed by the Court to this effect that as to whether the suit shop was let out to Firm
Murlidhar Bal Mukand by Khichi Lal (the first mortgagee) and now on redemption of
that mortgage the present plaintiff has become the mortgagee. Ex.A.2 is copy of the
statement of Sri Bal Mukand father of the objector, wherein it was specifically
admitted by him that this suit shop was given on rent by Shri Khichi Lal and rent note
for a period of three years was executed and monthly rent agreed upon was Rs. 6/-. In
view of this clear admission of the father of the objector, even assuming, that earlier
mortgage-deed Ex.A 13 is not admissible in evidence, there is no doubt that the first
mortgage was admitted by objector's father. It is also significant to say here that the
question in dispute in the instant case is not the determination/creation or redemption
of earlier mortgage. Rather question is whether the ancestors of the objector were
inducted as tenants by Khichi Lal Heera Lal or by the mortgagors and this question
has been answered by father of the objector in affirmative by admitting this fact that
they were the tenants of Khichi Lal. Ex.A.8 is the copy of the statement of Sri Kaluwa
Ram, the second mortgagee who also admitted the first mortgage in favor of Shri
Khichi Lal. Ex.A.12 is the copy of statement of earlier mortgagee Shri Khichi Lal
recorded on 28.4.1947 in Civil Suit No. 88/1947 filed by the second mortgagee
against the tenants wherein he stated that this shop was let out by him to father of the
objector and thereafter this shop was redeemed and re-mortgaged in favor of the
second mortgagee.

13. In view of the entire evidence as discussed here-in-above, the first appellate court
rightly came to this conclusion that the objector failed to prove that his ancestors were
the tenants of the mortgagors. This contention made by learned counsel for the
petitioner objector has also no force that the objector cannot be evicted a final decree
of redemption obtained against the second mortgagee as on redemption of the first
mortgage and creation of second mortgage in favor of the second mortgagee the
ancestors of the objector became tenants of the second mortgagee by virtue of
redemption of first mortgage and in view of the judgments relied upon by learned
counsel of the decree-holder, the objector being tenant inducted by mortgagee is liable
to be evicted. No such case has been made out that the first appellate court has
exercised a jurisdiction not vested in it by law or has failed to exercise jurisdiction so
vested in it or has acted illegally or with material irregularity.

14. Vide one application it was prayed on behalf of the decree-holder that Rs. 1,000/-
per month should be allowed as manse profits, but no order is required by this Court
as suit for the same purpose has already been filed by the decree-holder.

Consequently, this revision petition is hereby dismissed with costs.

Petition dismissed.

Cases Referred.

1. 1996(2) RRR 134 (SC): (1996) 3 SCC 424
2. 1996(1) RRR 449: 1996(1) RCR (Rent) 150 (SC) : (1996) DNJ (SC)
3. 1987 (Supp) SCC 87
4. 1987(2) RCR (Rent) 403 (SC) : AIR 1987 SC 2146
5. AIR 1985 Raj 11