Kanhaiya Lal and Others vs Sohan Lal and Others

Dr. Vineet Kothari, J.—This second appeal of the defendants is arising out of the judgment and decree dated 03.09.2013 passed by the learned Additional District Judge No. 1, Bhilwara in Civil Appeal No. 71/2005 "Sohan Lal S/o Ram Kalyan Vijayvargiya and Ors. Vs. Kishan Chand (deceased) S/o Dhallumal through his LRs and Ors." who allowed the appeal filed by the present respondents-plaintiffs and modified the judgment and decree dated 10.08.2005 passed by the learned Additional Civil Judge (Junior Division) No. 2, Bhilwara in Civil Original Suit No. 322/1999 "Sohan Lal S/o Ram Kalyan Vijayvargiya and Ors. Vs. Kishan Chand (deceased) S/o Dhallumal through his LRs and Ors." by which, the learned Additional Civil Judge (Junior Division) had decreed the suit filed by the plaintiffs seeking redemption of mortgage of suit house and for its possession which is known as "Khatiknami Haveli" situated at Azad Chowk, Bhilwara.

The present second appeal has been filed by the defendants-Kanhaiya Lal S/o Heeranand Sindhi and Hismat Rai @ Himmatraj S/o Dhallu Mal Sindhi against the respondents-plaintiffs-Sohan Lal S/o Ram Kalyan Vijayvargiya and Ors. aggrieved by the order judgment and decree dated 03.09.2013 passed by the First Appellate Court of learned Additional District Judge No. 1, Bhilwara in Civil Appeal No. 71/2005 "Sohan Lal S/o Ram Kalyan Vijayvargiya and Ors. Vs. Kishan Chand S/o Dhallu Mal Sindhi (deceased) through his LRs (Respondents Nos. 1 to 9) and Kanhaiya Lal S/o Heeranand Sindhi (Respondents Nos. 10 to 16).

The facts in brief leading to the present second appeal which has a chequered history is in respect of the suit property situated at Azad Chowk, Bhilwara which suit property was mortgaged vide registered mortgage deed (Ex. 20) dated 07.12.1974 by one Pyare Lal S/o Ram Lal (mortgagor) in favour of Dhallu Mal Sindhi and Heeranand Sindhi, the tenants of the said suit property. The tenants were carrying on the business of Bakery in the four suit shops situated on the front side of the said house and were also in possession of some more portion of the suit property other than the suit shops and also one portion which was in possession of one Raj Kumar S/o Vilayati Ram Khanna, with whom also, that portion of the suit property was mortgaged by the owner Pyare Lal and that portion was later on purchased by the respondents Nos. 2 to 4 - Raj Kumar S/o Manohar Lal Sindhi, Smt. Kamla W/o late Manohar Lal Sindhi and Govind Ram Kalwani S/o Kanhaiya Lal Kalwani. The dispute in the present case is about the four suit shops only in which the legal representatives of the mortgagees under the agreement Ex. 20 dated 07.12.1974 namely, Dhallu Mal Sindhi and Heeranand Sindhi are in possession and claim of these defendants-appellants is that even redemption of said mortgage on payment of Rs. 20,000/- which was created by the mortgagor Pyare Lal in favour of Dhallu Mal Sindhi and Heeranand Sindhi under the registered mortgage deed (Ex. 20) dated 07.12.1974 since they were the tenants in the said suit shops, their tenancy stood revived with the redemption of the mortgage under the Court decree and, therefore, the possession of the suit property namely, the four shops in question was not required to be handed over back to the mortgagor after the redemption of the mortgage. It may be noted here that the original mortgagor Pyare Lal had sold the suit property including the said four suit shops in question in favour of the original plaintiff Sohan Lal S/o Ram Kalyan Vijayvargiya including the right of redemption of mortgage and the present suit for redemption of mortgage was also filed by the purchaser Sohan Lal S/o Ram Kalyan Vijayvargiya only.

The civil suit bearing number 322/1992 Sohan Lal S/o Ram Kalyan Vijayvargiya and Ors. Vs. Kishan Chand S/o Dhallu Mal Sindhi (since deceased) through his LRs and Ors. was decreed by the learned Trial Court on 18.03.2004 which was the suit for redemption of mortgage and possession of the suit property with the following findings in favour of the plaintiffs:-

Against the said judgment and decree dated 18.03.2004, the defendants Kishan Chand S/o Dhallu Mal Sindhi and Ors. have filed the first appeal before the learned Additional District Judge No. 1, Bhilwara which appeal No. 14/2004 "Kishan Chand S/o Dhallu Mal Sindhi and Ors. was allowed on 22.03.2005 and the matter was remanded back to the learned Trial Court for deciding the issue No. 3 again. The relevant portion of the said order dated 22.03.2005 is quoted herein below for ready reference:-

After the remand, the learned Trial Court by its order dated 10.08.2005 in the same suit bearing number 322/1992 "Sohan Lal S/o Ram Kalyan Vijayvargiya and Ors. Vs. Kishan Chand S/o Dhallu Mal Sindhi (deceased) by LRs and Ors." decided the aforesaid issue No. 3 in favour of the defendants and against the plaintiffs in the following manner:-

Against the said order dated 10.08.2005 passed after remand by the learned Trial Court, the plaintiffs Sohan Lal S/o Ram Kalyan Vijayvargiya and Ors. again filed the First Appeal No. 71/2005 which came be allowed in favour of the plaintiffs by the impugned order dated 03.09.2013 by the learned Additional District Judge No. 1, Bhilwara holding that the plaintiffs were entitled to recover the possession of the suit property namely, the four shops in question as the defendants-tenant had failed to prove they they were tenant at the time of mortgage and continued as tenants in the suit property even after redemption of the mortgage. The relevant findings of the learned Additional District Judge No. 1, Bhilwara from the order dated 03.09.2013 are quoted herein below for ready reference:-

Being aggrieved by the aforesaid judgment and decree of the learned First Appellate Court of Additional District Judge No. 1, Bhilwara, the defendants-Kanhaiya Lal S/o Heeranand Sindhi and Hismat Rai @ Himmatraj S/o Dhallu Mal Sindhi have filed the present second appeal before this Court on 02.12.2013.

The learned Senior Counsel Mr. R.K. Thanvi assisted by the learned counsel Mr. Muktesh Maheshwari appearing for the appellants-defendants submitted that the learned First Appellate Court has erred in holding that the tenants had no independent right of tenancy in the suit shop in question and that the redemption of the mortgage decreed in favour of the plaintiff - Sohan Lal S/o Ram Kalyan Vijayvargiya under the Mortgage Deed Ex. 20 dated 07.12.1974 with the deposit of the decreetal money of Rs. 20,000/- for redemption of mortgage by the plaintiff on 06.04.2004 with the learned Trial Court in pursuance of the decree dated 18.03.2004, quoted above, and as mortgagees, they were also bound to hand over the possession of the suit shops in question to the plaintiff. The learned Senior Counsel Mr. R.K. Thanvi relying upon the judgments of the Hon''ble Supreme Court in the case of Nirmal Chandra Vs. Vimal Chand, and Cheriyan Sosamma and others Vs. Sundaressan Pillai Saraswathy Amma and Others, urged that there was no merger of the two rights of mortgagee and tenancy in favour of the mortgage under the said mortgage deed Ex. 20 dated 07.12.1974 in which, the fact of the suit shops being in possession of M/s Kanhaiya Lal Sugan Chand Sindhi and Ram Dayal Tulsidas Sindhi was duly noted and, therefore, even with the redemption of the mortgage with which the present tenants do not join any issue, their tenancy stood revived with the redemption of the mortgage and, therefore, without adopting due process of eviction under the provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 or the new Rajasthan Rent Control Act, 2001, the tenants cannot be dispossessed from the suit shops in question even though the part of the entire suit building under the mortgage was handed over back to the plaintiffs.

On the other hand, the learned counsels Mr. Vinay Jain and Mr. Darshan Jain appearing for the respondents-plaintiffs have vehemently submitted that the present appellants-defendants Kanhaiya Lal S/o Heeranand Sindhi and Hismat Rai @ Himmatraj S/o Dhallu Mal Sindhi have filed the present second appeal not as tenants but as legal representatives and legal heirs of the original mortgagees Dhallu Mal S/o Kirat Mal Sindhi and Heeranand S/o Basar Mal Sindhi. The learned counsel Mr. Vinay Jain further submitted that the tenancy in favour of M/s Kanhaiya Lal Sugan Chand Sindhi and Ram Dayal Tulsidas Sindhi as noted in Exhibit-20 dated 07.12.1974 created by the original mortgagor Pyare Lal in respect of the entire suit including the suit shops were purchased by the plaintiff-Sohan Lal S/o Ram Kalyan Vijayvargiya, the right of redemption of mortgage created by him on 07.12.1974 and its tenancies stood merged in the mortgage deed and their revival in the mortgage deed depended upon the fresh tenancy to be created in favour of the present tenants after redemption of the mortgage by the mortgagor. Since no such fresh tenancy was created in favour of them and the defendants failed to prove that any rent was paid by them to the mortgagor or the present plaintiff, therefore, they were bound to hand over the possession of the suit shops in question to the plaintiffs, as rightly held by the learned First Appellate Court in the impugned judgment dated 03.09.2013. The learned counsel Mr. Vinay Jain also submitted that since the burden of proof for issue No. 3 was on the defendants and they failed to prove any such independent tenancy in their favour created by the mortgagor or the present plaintiff after the redemption of mortgaged property as per the order of the learned Trial Court dated 18.03.2004, therefore, the present appellants-defendants were also bound to hand over the possession of the suit shops also in question to the plaintiffs. The learned counsel Vinay Jain submitted that no substantial question of law arises in the present case and the present second appeal filed by the defendants deserves to be dismissed.

I have heard the learned counsels for the parties at length and perused the record. In the considered opinion of this Court no substantial question of law arises in the present second appeal filed by the appellants-defendants and the learned First Appellate Court of Additional District Judge No. 1, Bhilwara was justified in holding that the present appellants-defendants-Kanhaiya Lal Heeranand Sindhi and Hismat Rai @ Himmatraj S/o Dhallu Mal Sindhi were not the tenants, whose tenancy stood revived after the suit for redemption of mortgage was decreed by the learned Trial Court on 18.03.2004 and in the absence of any evidence adduced by them for such revival of tenancy in their favour after redemption of the mortgage, they were not entitled to retain the possession of the suit shops in question after redemption of the mortgage.

The Exhibit-20 dated 07.12.1974 mortgage deed which is the bone of contention and the relevant portion which has been extracted by the learned First Appellate Court is also quoted herein below in extenso for ready reference and which is duly signed by the concerned parties to the suit:-

From the relevant portion of the mortgage deed, highlighted above, it is clear that the mortgagees took possession of the entire property as mortgagees and clearly agreed to hand over the possession of the house as well as the shops in question upon redemption of mortgage and about the tenancy, the condition was that if the same tenants namely, Kanhaiya Lal, Sugan Chand and Ram Dayal Tulsidas Sindhi continued to remain tenants even at the time of redemption of mortgage and a fresh rent note is executed in their favour, then they will continue to remain tenants as such. Since the said entire property viz., Haveli was mortgaged including the suit shops in favour of the tenants only and the rent was not realized and was adjusted against the interest payable by the mortgagor to the mortgagees, with the redemption of the mortgage, their tenancy rights automatically came to an end and there was implied surrender of tenancy at the time of creation of mortgage itself on 07.12.1974. Unless a fresh tenancy under new Rent note was created in their favour on those terms, if they continued to remain as tenants even at the time of redemption of mortgage only then their tenancy would stand revived, otherwise not. Admittedly, no such fresh tenancy was ever created in favour of the persons in possession, who failed to establish in their favour discharging their burden with regard to issue No. 3 that (i) the same tenants continued to remain tenants at the time of the redemption of mortgage and (ii) that a tenancy was again created/revived by execution of a fresh Rent note after such redemption of the mortgage. No such proof of their payment of rent to the plaintiff or the mortgagor even during the currency of the mortgage or after the redemption of the mortgage was produced by the defendants before the learned Trial Court. No rent receipts, books of accounts etc. was produced by them, though they were carrying on the business under a different name and style of "New Laxmi Bakery". Therefore, there is a considerable force in the contention of the learned counsel Mr. Vinay Jain appearing for the respondents-plaintiffs that the present appellants-defendants Kanhaiya Lal S/o Heeranand Sindhi and Hismat Rai @ Himmatraj S/o Dhallu Mal Sindhi are before this Court in the capacity of legal heirs of the mortgagees but not as the same tenants and therefore, they cannot claim to retain the possession of the suit shops in question as tenants after the mortgage stands redeemed. The fact admitted by the learned counsel for the defendants Mr. R.K. Thanvi that the possession of the part of the suit property or Haveli except the said four shops in question was handed over to the plaintiffs under the said redemption decree further dispels any doubt that the same persons, the present appellants are in possession and have retained the suit shops in question not as tenants but as Legal Representatives of mortgagees. The revival or continuation of their rights as tenants after redemption of mortgage only depended upon the execution of fresh rent note in their favour as stipulated under the mortgage deed Ex. 20 dated 07.12.1974 and in the absence of the same, they are bound to hand over the possession of entire suit property including the shops to the mortgagor/purchaser from the mortgagor viz., Sohan Lal S/o Ram Kalyan Vijayvargiya. The judgments relied upon by the learned counsel for the appellants-defendants are not applicable to the facts of the present case but impliedly support the case of the plaintiff-respondent on facts.

The Hon''ble Supreme Court in the case of Nirmal Chandra Vs. Vimal Chand (supra) held as under:-

"8.. From a perusal of the decisions of this Court as indicated above, it clearly emerges that there is no automatic merger of two rights where mortgage is executed in favour of a tenant and on redemption of mortgage, the tenancy rights kept in abeyance would revive and entitle the tenant to continue in possession even after the redemption of the mortgage. On execution of mortgage, tenancy rights would terminate only if it is clear expressly or impliedly by conduct or other related circumstances that the parties had intended so which would be a question of fact. Thus as a normal rule except in intention being to the contrary, mortgage and lease operate independent of each other and on mortgage coming to an end by redemption, tenancy would revive." 15. The Hon''ble Supreme Court in the case of Cheriyan Sosamma (supra) held as under:-

"12. The learned counsel for the appellants rightly referred to the decisions of this Court in the case of Sambangi Applaswamy Naidu and Others Vs. Behara Venkataramanayya Patro and Others, wherein the Court has held that there can be no merger of a lease and a mortgage even where the two transactions are in respect of the same property; it is well-settled that for a merger to arise, it is necessary that lesser estate and a higher estate should merge in one person at once and the same time and in the same right and no interest in the property should remain outstanding. In the case of a lease, the estate that is outstanding in the lessor is the reversion; in the case of a mortgage, the estate that is outstanding is the equity of redemption of the mortgagor. Accordingly, there cannot be a merger of a lease and a mortgage in respect of the same property since neither of them is a higher or lesser estate than the other. Even if the rights of the lessee and the rights of the mortgagee in respect of a property were to be united in one person the reversion in regard to the lease and the equity to redemption in regard to the mortgage would be outstanding in the owner of the property and accordingly, there would not be a complete fusion of all the rights of ownership in one person. This position in law as explained by the Bombay High Court in Narayana Dogra Shetty vs. Ramachandra Shivram Hingne reported in 65 Bom. LR 449 has been fully approved by this Court in Shah Mathuradas Maganlal and Co. Vs. Nagappa Shankarappa Malage and Others, . The Court also held that with regard to the implied surrender of the lessee''s rights when the usufructuary mortgage was executed would depend upon what was the intention of the parties at the time of execution of the mortgage deed in favour of the sitting tenant and the same has to be gathered from the terms and conditions of the mortgage transaction in the light of the surrounding circumstances of the case. Aforesaid decision is relied upon by this Court in the case of Nemi Chand Vs. Onkar Lal, ." 16. In view of the aforesaid settled legal position, it is clear and rightly found by the first appellate court below that in the present case, the tenancy of the mortgagees stood merged with the mortgage and there was implied surrender of tenancy and their right of tenancy to be continued after the redemption of mortgage depended upon the execution of the fresh rent note to be executed on those terms provided same tenants still continued to be there in the same premises at the time of redemption of mortgage, which never happened in the present case and, therefore, there was clearly a surrender and merger of the tenancy rights by the mortgagees at the time of mortgage itself and with the redemption of the mortgage, their tenancy rights did not revive and, therefore, they cannot claim any right to remain in the possession of the suit shops as tenants.

This being the position, as found by the Court below, which are the findings of facts as held by the Hon''ble Supreme Court in the case of Gopalan Krishnankutty Vs. Kunjamma Pillai Sarojini Amma and others, in the opinion of this Court, therefore, no substantial question of law arises for further consideration by this Court and, therefore, there being no error or perversity in the said findings of fact and the order passed by the learned First Appellate Court of Additional District Judge No. 1, Bhilwara on 03.09.2013, the appellants-defendants are bound to hand over the possession of the entire suit property including the four shops to the plaintiffs under the said decree of redemption of mortgage.

Accordingly, the present second appeal filed by the appellants-defendants-Kanhaiya Lal S/o Heeranand Sindhi and Hismat Rai @ Himmatraj S/o Dhallu Mal Sindhi is dismissed. No orders as to costs. A copy of this judgment be sent to both the learned Courts below and both the side parties concerned forthwith.

It is directed that the appellants-defendants shall hand over the peaceful and vacant possession of the entire suit property including the suit shops to the respondents-plaintiffs within a period of Nine (9) Months from today i.e. on or before 31.12.2015 and shall pay mesne profit @Rs. 2,000/- per month (Rupees Two Thousand only) commencing from April, 2015 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the respondents/plaintiffs also and in case there is any default in payment of mesne profit, the period of Nine (9) Months shall stand reduced and the decree of possession would become executable forthwith. The appellants-defendants shall also not part with the possession of the suit shops or any part of the suit property in favour of any one else and would not create any third party interest in the same during the aforesaid period and if it is so done, the same would be treated as void and such third parties will also be bound by this decree. The appellants-defendants shall furnish a written undertaking incorporating the aforesaid conditions in the Trial Court within three months and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit premises is not handed over to the respondents-plaintiffs within a period of Nine (9) Months from today, i.e., on or before 31.12.2015 or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the respondent-plaintiff shall also be entitled to invoke the contempt jurisdiction of this Court.