Gopal Sharan and Others vs Smt. Radha Devi and Others

Shiv Kumar Sharma, J.—Instant appeal impugns the judgment dated November 15, 1983 of Additional District Judge No. 2, Jaipur City, Jaipur in Execution Case No. 8/1983 (28/ 1981) whereby learned executing Court observed that the appellants were not entitled to actual physical possession of the property in question, however they could get symbolic possession.

Contextual facts depict that vide decree dated December 20, 1980 learned District Judge Jaipur City issued directions in favour of the appellants and against respondent No. 13 to the effect that on depositing by appellants Rs. 48999/- within two months of the date of decree a sale deed would be executed by respondent No. 13 in favour of appellants and possession of the property would be handed over to the appellants. Pursuant to the directions, the appellants deposited the amount. Since, respondent No. 13 avoided to execute the sale deed, it was executed and got registered by the Court. The appellants thereafter filed execution petition seeking possession of the property in question. When Nazir, proceeded to execute the decree the respondents No. 1 to 12 and 4 others resisted the delivery of possession. Upon the report of Nazir, notices were issued to the obstructors, who jointly filed their objections. Learned Executing Court recorded evidence and decided objections as indicated above.

I have pondered over the rival submissions.

A close look at the material on record demonstrates that Nazir went to the site and submitted his report on July 15. 1981. Thereafter the executing Court issued notices to 19 obstructors. Only 14 obstructors filed objections. Out of them five had handed over possession, but nine persons (Respondents No. 1, 3, 4, 5, 7, 9, 10 and 12) locked the premises. All these respondents do not appear to reside in the premises. From the perusal of document Ex. P-1, it is evident on the face of it that it clearly purports to be a mortgage by conditional sale. There is nothing in the deed (Ext. 1) that warrants the conclusion that the mortgagee could induct tenants who would continue beyond the term of the existence of the mortgage or who would be given rights even after the expiry of the mortgage.

Learned District Judge Jaipur City in the decree dated December 20, 1980 issued directions to the mortgagee to deliver actual physical possession and the executing Court could not have gone behind the decree by interpreting the word ''possession'' as symbolic possession.

Case law cited on behalf of the respondents is distinguishable. Ratio indicated in Pandit Chunchun Jha Vs. Sheikh Ebadat Ali and Another, Bhaskar Waman Joshi (deceased) and Others Vs. Shrinarayan Rambilas Agarwal (deceased) and Others, and Vidhyadhar Vs. Manikrao and Another, does not help the respondents on the contrary it fully supports the case of the appellants. Their Lordships of the Supreme Court in these cases interpreted Section 58(c) of the Transfer of Property Act, 1882. Mushir Mohammed Khan (Dead) By LRS. Vs. Smt. Sajeda Bano and Others, was not the case related to one composite document. It was a case of three documents viz. Sale Deed, Agreement of recovenyance and Rent Note. In Tamboli Ramanlal Motilal (dead) by L.Rs. Vs. Ghanchi Chimanlal Keshavlal (dead) by L.Rs. and another, there was no relationship of debtor and creditor between the parties as is existed in the instant case. Dev Raj Dogra and others Vs. Gyan Chand Jain and others, was the case related to mortgagor''s tenants. The question in the case reported in AIR 1997 SC 208 was as to whether the mortgagee became tenant under the provisions of Kerala Land Reforms Act. Hence in the facts and circumstances of the case no physical possession was handed over on redemption. In Sahadu Bala Botre (dead) by LRs. and another Vs. Namdeo Bapuji Kerala (Dead) by LRs. and others, Landlord was mortgagor and the tenant was mortgagee hence it was held that on redemption tenancy rights sprang up and the tenant could not be dispossessed physically. In Mangru Mahto and Others Vs. Shri Thakur Taraknathji Tarakeshwar Math and Others, the question was whether mortgagor in possession had power to leave the mortgage property, it was held that the said question must be determined with reference to the authority of the Mortgagor. In Nemi Chand Vs. Onkar Lal, , the mortgagee was existing tenant. Cheriyan Sosamma and others Vs. Sundaressan Pillai Saraswathy Amma and Others, was the case where lease existed in favour of the husband of mortgagee. It was held that after redemption tenancy will survive as husband and wife are one.

In my opinion, ratio of Carona Shoe Co. Ltd. and Another Vs. K.C. Bhaskaran Nair, is squarely applicable to the facts of the instant case. Their Lordships of the Supreme Court in the said case propounded that under mortgage deed mortgagee was not entitled to induct tenants who would continue beyond the term of existence of mortgage or who would be given rights even after expiry of mortgage. As no landlord and tenant relationship existed between tenant and mortgagor, tenant was not entitled to protection of Rent Act.

For these reasons. I allow the appeal and set aside the impugned order dated November 15, 1983. I direct the executing Court to execute the decree by delivering actual physical possession of the property in question. The appellants shall also be entitled to costs of the appeal.