A.S. Nehra, J.
1. This appeal has been filed by the defendant against the judgment and decree dated 27-10-1973 passed by the Additional District Judge, Rupnagar
2. The brief facts of the case are that the shop, in dispute, was mortgaged with possession by the plaintiff with the defendant for a sum of Rs. 1500/-, vide registered mortgage deed dated 7-10-1974. By means of the suit, he had sought to get the shop redeemed from the defendant.
3. The defendant contested the suit The factum of mortgage was admitted but it was asserted that the mortgage was for Rs. 15000/- and not merely Rs. 1500/-. He also claimed Rs. 1000/- as having been spent by him for effecting improvements He also asserted that fee bad paid local taxes levied on the shop, on behalf of the plaintiff and he was also entitled to reimbursement of the said amount. Another plea taken by him was that he was in possession of the shop as a tenant since prior to the mortgage and at the time of commencement of the mortgage, and of redemption is allowed, then his tenancy rights in the shop, in dispute, would be revived.
4. On the pleadings of the parties, the following issues were framed : -
1. Whether shop, in dispute, was mortgaged by the plaintiff to the defendant for Rs. 1500/-, vide mortgage deed dated 7-10-1974?
2. Whether defendant has made an improvement etc. to the extent of Rs. 1000/ in the property, in dispute If so, its effect ?
3. Whether defendant was a tenant of the plaintiff prior to the mortgage? If so, its effect?
5. The trial Court decided issues Nos. 1 and 2 in favour of the plaintiff and against the defendant. On issue No. 3, it was held by the trial Court that the defendant was a tenant under the plaintiff prior to the creation of the mortgage in respect of the shop, in dispute, and on redemption, his tenancy rights would be revived. Consequently, it was held that the plaintiff was not entitled to be pat into actual possession of the shop. In consequence, a preliminary decree for redemption of the shop in favour of the plaintiff was passed but only for the delivery of symbolic possession.
6. The plaintiff feeling aggrieved by the judgment and decree of the trial Court filed an appeal before the lower appellate Court. The findings given by the trial Court on issues No. 1 and 2 were not assailed Even the finding on issue No' 3 to the effect that the defendant was a tenant under the plaintiff in the shop in dispute, prior to the mortgage, was also not disputed before the lower appellate Court.
7. The learned lower appellate Court relying upon Sardari Lal v. Ram Lal and Ors., A. I. R. 1962 Punj 48, held that the tenancy rights of the defendant would not be revived on redemption in the facts and circumstances of the instant case The finding of the trial Court on issue No. 3 was set aside and the anneal filed by the plaintiff was allowed and it was held that the plaintiff shall be entitled to physical possession by way of redemption of the shop, in dispute, on payment of Rs. 1500/- to the defendant.
8. The defendant-appellant has challenged the finding of the lower appellate Court on issue No. 3. It has been argued by the learned counsel for the appellant that the judgment of the learned Single Judge reported as Sardari Lal v. Ram Lal and Ors., A I. R. 1962 Punj 48, has been set aside in Letters Patent Appeal No. 221 of 1961 (Sardari Lal v. Ram Lal and Ors., L. P. A. 221 of 1961) by a Division Bench of this Hon'ble Court on 26-12-1961. Before the lower appellate Court, the finding on issue No. 3 to the effect that the defendant-appellant was a tenant under the plaintiff-respondent in the shop, in dispute, prior to the mortgage, was not disputed. Therefore, both the learned lower Courts have held that the defendant-appellant was a tenant under the plaintiff-respondent prior to the creation of the mortgage. This is a concurrent finding of fact given by both the Courts below, which cannot be disputed in regular, second appeal. It has been held by the aforesaid Division Bench :-
'That if the parties to the mortgage intended that the tenancy should be finally terminated by the mortgage, and that the owner would be entitled to immediate possession on the redemption of the mortgage, this would have been bound to be specified in the mortgage contract and there would in the agreement have been in express surrender by the mortgagee of the rights secured by him as a tenant under the Act. in the absence of any such specific provision in the contract of mortgage, I am of the opinion that the tenant did not surrender his rights, and that the intention of the parties to the mortgage must be interpreted as being that on the redemption of mortgage by the landlord, the tenant would still retain his rights as a tenant.'
9. Learned counsel for the respondent has cited a Full Bench judgment of this Court reported as lagan Nath Piare Lal v. Mittar Sain, (1969) 71 P.L.R. 606. The decision given by the Division Bench in Letters Patent Appeal No. 221 of 1951 (Sardari Lal v. Ram Lal and Ors.) on 26-12-1961 was examined by the Full Bench in paragragh 11 of the judgment in Jag an Nath Plare Lal's case (supra) and the decision given by the Division Bench was approved by the Full Bench. The Full Bench judgment does not support the case of the respondent. The case of the appellant is fully covered by the Division Bench judgment in letters Patent Appeal No. 221 of 1961. Therefore, the finding of the lower appellate Court on issue No. 3 is set aside.
10. In view of the aforesaid discussion, the appeal is allowed and the judgment and decree passed by the trial Court is restored. I accordingly pass a preliminary decree with costs for symbolic possession by way of redemption of the mortgage of the shop, in dispute, on payment of Rs. 1500/-to the defendant-appellant. This said amount shall be paid or deposited by the plaintiff respondent by 24-9-1990 and the re after the plaintiff respondent may apply for passing the final decree in his favour. The plaintiff would not be entitled actual possession of the shop, in dispute, after redemption and the defendant-appellant shall continue in its occupation as a tenant under the plaintiff on the same terms and conditions as existing before the mortgage was effected in his favour.