Meena Surana vs Champalal

Pratap Krishna Lohra, J—Appellant-defendant has laid this appeal imploring annulment of judgment and decree dated 19th of February, 2015, passed by Additional District Judge, Abu Road, District Sirohi (for short, ''learned lower appellate Court''), affirming the judgment and decree dated 20th of April, 2011, passed by Civil Judge (Junior Division) Sirohi (for short, ''learned trial Court'').

Briefly stated, the facts of the case are that, respondent-plaintiff instituted a suit for eviction and recovery of rent against appellant-defendant, inter alia, on the ground that the premises owned by him was let out to respondent in February, 1998 at a monthly rent of Rs. 700/- and asserted that the tenancy was as per English calendar month. For seeking eviction of the appellant, ground of default in payment of rent is set out in the plaint besides the ground of reasonable and bona fide necessity. In order to prove reasonable and bona fide necessity, respondent has pleaded that he is contemplating to enter into matrimony, and therefore, for himself and his wife he is in dire need of the disputed premises. It is further averred, in the plaint, that respondent is having no other accommodation to provide shelter to his prospective wife and in want of requisite accommodation his matrimonial prospects are substantially diminishing. Respondent has also set out a case that if the appellant is asked to vacate the premises, it will not cause any hardship to her, and, contrary to it, would cause undue hardship to him. Besides these two grounds, the respondent has also taken shelter of yet another ground for eviction, viz., material alteration in the premises by appellant. While taking a dig at the stand of the appellant in disowning the ownership of respondent, it is also urged, in the plaint, that appellant is liable to be evicted from the premises on the ground of denial of title. Requisite facts, about default in payment of rent, were incorporated in the plaint with material particulars.

Appellant-defendant contested the suit and filed written statement. In the return, appellant, while acknowledging the ownership of respondent at the earlier point of time stated that in the month of January 1998, when respondent was in dire need of money, he borrowed a sum of Rs. 1,00,000/- from him and, in lieu thereof, mortgaged the disputed premises in the name of appellant. Execution of mortgage deed by respondent in favour of appellant on 7th of January, 1998 is also pleaded specifically in the written statement. As per the version of the appellant, respondent agreed to pay the aforesaid amount on or before 1st of January, 2001 and in the event of his failure to carry out his obligation the mortgage would automatically stand foreclosed so as to confer title of the premises on appellant facilitating full use and occupation of the same by her. It is further elaborated, in the written statement by the appellant, that, as per the stipulated terms and conditions of mortgage-deed, when respondent failed to pay the requisite amount, she herself become owner due to foreclosure of the mortgage and, as such, respondent is not her landlord. In that background, the appellant has asserted that there was no obligation on her part to pay rent of the disputed premises to the respondent. Emphasizing the relationship of mortgagee and mortgagor between the rival parties, appellant specifically pleaded in the return that as a consequence of foreclosure of the mortgage, provisions of Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for short, ''Act of 1950'') are not applicable. As regards reasonable and bona fide necessity of the respondent, the facts averred in the plaint were denied in toto with a specific plea that presently respondent is 48 years old and, as such, there is no question of reasonable and bona fide necessity, nor there is any question of comparative hardship if the disputed premises is not vacated by the appellant. The appellant, while making scathing attack on the conduct of respondent, has pleaded, in the written statement, that he has concealed material facts and laid this suit on wholly false and concocted facts. While adverting to the alleged material alterations carried out in the premises, the appellant has asserted in the written statement that no material alteration was done in the premises and some of the repairing works including plastering was carried out as per wishes of the respondent. As regards notice served by the respondent, appellant has acknowledged receipt of the same but asserted that the suit is founded on absolutely false and baseless grounds. Appellant has also claimed exemplary costs of Rs. 25,000/- from the respondent.

Relying on the pleadings of rival parties, the learned trial Court settled eleven issues for determination.

Learned trial Court, at the threshold, while considering the suit for eviction based on ground of default determine provisional rent in terms of sub-Section (3) of Section 13 of the Act of 1950. Against the said order of determination of rent, appellant preferred an appeal before the District Judge, Sirohi to question its legality and propriety and thereupon, while setting aside the said order, learned District Judge, Sirohi directed the learned trial Court to first decide Issues No. 1 & 11 and determine the true relationship between the parties.

After remand order, the learned trial Court proceeded to record evidence of the rival parties for deciding Issues No. 1 & 11. To support his cause, respondent Pramod Kumar himself appeared in the witness box as P.W.1 and produced Will executed in his favour for the property, which was exhibited. The appellant also made endeavour to strengthen her case for proving these two issues and on her behalf three witnesses appeared in the witness box. After conclusion of the evidence pertaining to these two issues, the learned trial Court analyzed the evidence and materials available on record and by its order 25th September 2007 both these issues decided in favour of respondent-landlord and against the appellant. The learned trial Court arrived at a clear and unequivocal finding that the relationship between the parties is that of tenant and landlord and the so-called document produced by the appellant on a plain paper, projected as a mortgage deed, cannot be construed as mortgage deed. The learned trial Court also recorded a definite finding that mortgage deed is a compulsorily registerable instrument and as such recitals contained on a plain paper is of no significance.

The aforesaid finding of the learned trial Court was questioned by the appellant before this Court by way of SBCW No. 7813/2007. This Court, while deciding writ petition, declined to interfere with the findings of learned trial Court on Issues No. 1 & 11 precisely on the ground that recitals contained on a plain paper, which is neither properly stamped, nor registered is inadmissible in evidence. The Court held:--

Indisputably, the petitioner is claiming to be in possession of the disputed premises as mortgagee on the strength of mortgage deed dated 7.1.98 alleged to have been executed by the original plaintiff-Champa Lal in her favour against the loan advanced a sum of Rs. 1,00,000/-. It is alleged that the amount of Rs. 1,00,000/- was paid by the petitioner to the plaintiff-Champa Lal in presence of two witnesses. A bare perusal of the photo stat copy of the mortgage deed placed on record as Annexure-9 reveals that it is executed on plain paper and has not been duly registered. It is not in dispute that the mortgage deed is required to be properly stamped and compulsorily registered. Thus, the court below has committed no error in holding that the alleged mortgaged deed is inadmissible in evidence."

Finally, while dismissing the writ petition, the Court recorded a definite finding that impugned order does not suffer from any jurisdictional error so as to warrant interference under Article 227 of the Constitution while dismissing the writ petition.

In order to prove the recitals contained in the Will and the grounds of eviction besides AW-1 Pramod Kumar, three other witnesses appeared on behalf of respondent-plaintiff in the witness box and testified on oath and in the form of documentary evidence besides Exhibit-1 Will, twenty-two other documents were produced and all the documents were exhibited. To substantiate its defence, appellant examined three witnesses.

Finally, after conclusion of trial of the case, learned trial Court, vide its judgment dated 24th April, 2011, passed a decree for eviction against appellant by directing that possession be handed over to the respondent within three months after breaking locks. The arrears of rent, in terms of provisional determination of rent, was also allowed to the appellant for a sum of Rs. 1,07,173/- and mesne profit for use and occupation @ Rs. 700/- per month from the date of passing of the decree.

Feeling disgruntled with judgment and decree of learned trial Court, appellant approached learned lower appellate Court by laying an appeal. At this juncture, it is just and proper to take note of certain facts concerning the order passed by the learned trial Court dated 25th of September, 2007, whereby Issues No. 1 & 11 were decided against the appellant. As a matter of fact, after dismissal of the writ petition against the said order, appellant approached Hon''ble Apex Court by way of preferring SLP No. 31611/2011, and the Hon''ble Apex Court on 2nd of December, 2011 dismissed the SLP by declining to interfere with the order. It is worthwhile to mention here that during pendency of SLP, learned trial Court proceeded with the trial of the suit and finally decided the same by its judgment and decree dated 20th April, 2011 and when this fact was brought to the notice of Hon''ble Apex Court, Hon''ble Apex Court, while dismissing SLP, observed that the learned Additional District Judge, Abu Road, Sirohi may consider independently both these issues sans observations made by the High Court.

Delving deep into the matter and thrashing out the evidence and other materials available on record, the learned lower appellate Court fully concurred with the findings and conclusions of the learned trial Court.

The learned lower appellate Court also dilated on the findings recorded by the learned trial Court on Issues No. 1 & 11 independently. Upon examining the matter in its entirety, the learned lower appellate Court did not find any infirmity in the findings and conclusions of the learned trial Court on all the issues, and therefore, while upholding the judgment of the learned trial Court dismissed the appeal. It is needless to observe here that the learned lower appellate Court thrashed out the matter de-novo while exercising its powers under Order 41 Rule 31 CPC.

I have heard learned counsel for the parties at length and thoroughly examined the verdicts of both the Courts below.

The pivotal question, which remained judicial scrutiny of subject-matter before the Courts below, was existence of relationship between the appellant and respondent, i.e., whether it was a relationship of landlord-tenant or mortgagee-mortgagor. Both the Courts below have concurrently found the relationship between the parties that of tenant and landlord, while repudiating the contention of the appellant that relationship was of mortgagee and mortgagor.

It is not in dispute that in the instant case appellant is pitted against the concurrent finding of fact recorded by both the Courts below, and therefore, this Court while exercising its second appellate jurisdiction is not obliged to investigate the grounds on which the findings were arrived at by the last Court of fact being the first appellate Court.

Interference with the finding of fact is warranted only when finding is per-se perverse, based on improper appreciation of evidence or, on consideration of inadmissible evidence or against the settled provisions of law or authoritative pronouncement by Hon''ble Apex Court. However, no such situation is available in the instant case. There remains no quarrel that mortgage other than mortgage by deposit of title-deeds can be effected only by a registered instrument as mandated by Section 59 of the Transfer of Property Act, 1882 (for short, ''Act of 1882''). Mortgage by deposit of title-deeds in terms of Section 58(f) of the Act of 1882 surely acknowledges the receipt and transfer of interest and, therefore, one may contend that its registration is compulsory. However, when the debtor deposits with the creditor title-deeds of the property for the purpose of security, it becomes mortgage in terms of Section 58(f) of the Act of 1882 and no registered instrument is required under Section 59 thereof as in classes of mortgage. The alleged mortgage, in the instant case, was neither properly stamped nor registered and it was also not a mortgage from any stretch of imagination falling within the ambit of Section 58(f) of the Act of 1882. In these situations under Section 17(1)(c) of the Registration Act, it was a compulsorily registerable instrument and the learned Courts below have rightly turned down the plea of the appellant to construe the same as if it is a document to create mortgage between both the parties.

Legal precedent Satti Paradesi Samadhi Vs. M. Sankuntala, (2014) AIRSCW 5532 : (2014) 8 JT 455 : (2014) 3 RCR(Civil) 938 : (2014) 8 SCALE 469 , which is essentially dilating on Order 41 Rule 2(2) CPC, cannot render any assistance to the case of the appellant for the simple reason that decision on Issues No. 1 & 11 by the learned trial Court is upheld right upto Hon''ble Apex Court and, as such, now that issue remains not res-integra that whether those issues ought to have been decided as preliminary issues.

Another legal precedent Bhugdomal Gangaram and Others Vs. State of Gujarat, AIR 1983 SC 906 : (1983) CriLJ 1276 : (1983) 1 Crimes 1070 : (1983) 1 SCALE 411 : (1984) 1 SCC 319 , which is essentially on Section 60 of the Evidence Act, the Court cannot come to the rescue of the appellant, more particularly, when the entire defence of the appellant was based on alleged mortgage deed, which had no legal sanctity, inasmuch as neither it was properly stamped nor registered.

In case of Virendra Nath thr. P.A. Holder R.R. Gupta Vs. Mohd. Jamil and Others, AIR 2004 SC 3856 : (2004) 5 JT 467 : (2004) 6 SCALE 221 : (2004) 6 SCC 140 : (2004) 1 SCR 93 Supp : (2004) AIRSCW 4121 : (2004) AIRSCW 7058 : (2004) 5 Supreme 482 , Hon''ble Apex Court has laid down the principle that unregistered mortgage deed could not be produced by the mortgagor, but this could be admitted for collateral purpose for ascertaining nature of possession. With utmost respect, in the instant case, the entire edifice of the defence of appellant against the suit for eviction was existence of the relationship of mortgagee and mortgagor, on the strength of mortgage deed, and therefore, the purpose for which the deed was sought to be used by the appellant was not a collateral purpose, rather it was utilized as the main defence by the appellant.

The term ''collateral purpose'' has a limited scope and meaning. It cannot be used for the purpose of saying that the deed created or declared or assigned or limited or extinguished a right of immovable property. Reliance, in this behalf, can be profitably made to a case of Food Corporation of India Vs. Kishan Lal Agarwal, AIR 1980 All 181 .

Upon examining the matter threadbare and taking into account the concurrent finding of fact and inadmissibility of the alleged deed as a mortgage deed, I am unable to find any question of law much less substantial questions of law involved in this appeal. The entire edifice of the defence is based on alleged instrument, which has no legal sanctity, and therefore, both the learned Courts below have rightly declined to consider the same worth credence.

The so-called substantial questions of law proposed in the memo of appeal and sought to be canvassed by the learned counsel for the appellant during the course of arguments are also not of substance, essential, real, of sound worth, important or considerable. A substantial question of law is to be understood as something in contradiction with-technical, of no substance or consequence, or academic merely.

It is also crystal clear that there is no question involved in this appeal, which is of general public importance or affecting directly and substantially rights of the parties. Reliance, in this behalf, can be profitably made to a decision of Hon''ble Apex Court in Sir Chunilal V. Mehta and Sons, Ltd. Vs. The Century Spinning and Manufacturing Co., Ltd., AIR 1962 SC 1314 : (1962) 3 SCR 549 Supp .

Therefore, viewed from any angle, I am not persuaded to interfere with the impugned judgment and decree passed by the learned lower appellate Court.

Resultantly, instant appeal fails and same is, hereby, dismissed.