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Dhani Ram Janki Dass Vs. Deep Chand Basant Lal and anr. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 274 of 1968
Judge
Reported inAIR1970P& H109
ActsTransfer of Property Act, 1882 - Sections 60 and 111
AppellantDhani Ram Janki Dass
RespondentDeep Chand Basant Lal and anr.
Appellant Advocate P.S. Jain and; N.C. Jain, Advs.
Respondent Advocate G.P. Jain,; G.C. Garg and; S.P. Jain, Advs.
DispositionAppeal allowed
Cases ReferredJagan Nath v. Mittar Sain. Second Appeal No.
Excerpt:
.....high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a..........appeal is directed against the decision of the additional district judge, karnal, reversing, on appeal, the decision of the trial court, decreeing the plaintiffs suit for possession of the shop in dispute. 2. the shop in dispute was mortgaged with possession by bal kishan to tara chand under a registered deed of mortgage dated 26th of august, 1952, to secure a sum of rs. 2500. the mortgage amount was to carry interest at the rate of one per cent per annum and the income from the shop was to be adjusted towards interest during the continuance of the mortgage. the mortgages was entitled to get the shop himself or give it on rent to some one else. on the same day, bal kishan executed a rent-note in favour of the mortgagee undertaking to pay rs. 200 per annum as rent. bal kishan sold.....
Judgment:

D.K. Mahajan, J.

1. This second appeal is directed against the decision of the Additional District Judge, Karnal, reversing, on appeal, the decision of the trial Court, decreeing the plaintiffs suit for possession of the shop in dispute.

2. The shop in dispute was mortgaged with possession by Bal Kishan to Tara Chand under a registered deed of mortgage dated 26th of August, 1952, to secure a sum of Rs. 2500. The mortgage amount was to carry interest at the rate of one per cent per annum and the income from the shop was to be adjusted towards interest during the continuance of the mortgage. The mortgages was entitled to get the shop himself or give it on rent to some one else. On the same day, Bal Kishan executed a rent-note in favour of the mortgagee undertaking to pay Rs. 200 per annum as rent. Bal Kishan sold equity of redemption to Dhani Ram, plaintiff, for Rs. 4,000 under a registered deed of sale dated 26th of February, 1965. Out of the sale consideration, a sum of Rs. 2,500 was left with the vendees for payment to the mortgagee.

3. The present suit was filed by the plaintiff for redemption of the shop on payment of Rs, 2500 to Tara Chand. Deep Chand was impleaded as defendant No. 2 on the allegation that he was a tenant of defendant No. 1 since 1-4-1964. The suit was resisted by defendant No. 2 on the ground that he cannot be dispossessed except in accordance with, the provisions of East Punjab Urban Rent Restriction Act, as he was the tenant of the mortgagor, before the mortgage. The trial Court found that defendant No. 2 was not in possession of the shop at the time of the mortgage or prior to the mortgage and that he became a tenant of the shop somewhere In the year 1954; and that he took the property on rent from the mortgagee. In this view of the matter, the trial Court came to the conclusion that defendant No. 2 being the tenant of the mortgagee, his tenancy would come to an end with the redemption of the mortgage. Thus theplaintiffs suit was decreed for possession of the shop in dispute.

4. Against this decision, an appeal was preferred by defendant No. 2, the tenant in the Court of the district Judge, Karnal. The appeal was heard by the Additional DistrictJudge, Karnal; and the learned Additional District Judge, while affirming the finding of the trial Court, that Deep Chand was a tenant inducted by the mortgagee, reversed the decision of the trial Court on the ground that in view of the decision of the Supreme Court in Mahabir Gope v. Harbans Narain Singh, AIR 1952 SC 205 the mortgagee's tenant continued to be a tenant of the mortgagor on redemption.

5. Against this decision, the present second appeal has been preferred by the mortgagor.

6. It is not now disputed that in view of our decision in Jagan Nath v. Mittar Sain. Second Appeal No. 1 of 1967 decided to day, = (AIR 1970 Punj and Har 104) this appeal must succeed. We have held that the tenant of a mortgagee ceases to be a tenant of the property on redemption of the mortgage. The Additional District Judge lost sight of the fact that the rule, he applied to decide the case against the mortgagor, was a rule relating to agricultural leases.

7. For the reasons recorded above, this appeal must succeed, The appeal is accordingly allowed; the judgment and decree of the lower appellate Court is set aside and that of the trial Court is restored; but there will be no order as to costs.

Shamsher Bahadur, J.

8. I agree.

B. S. Narula, J.

9. I too.


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