Rukshamaniben vs Bai Bhuriben Radhkishan and Others

Rajesh H. Shukla, J.—The present Second Appeal has been filed by the Appellant- Original Plaintiff posing the following substantial questions of law as follows;

(1) Whether even on redemption of the two mortgages, the Respondent can retain possession of the mortgaged property?

(2) Whether the Respondent-mortgagee had any tenancy right survived or in abeyance after the suit mortgage transaction. If yes, on true construction of mortgage deeds, Exhs. 34 and 35, is it open to the Respondent - mortgagee to refuse to give physical possession of the mortgaged property even on redemption of mortgagees challenging the judgment and order passed by the courts below on the grounds set out in the memo of the Petition.

The facts of the case briefly stated are that Civil Suit No. 17 of 1981 was filed by the Plaintiff for redemption and possession of the suit property on repayment of the amount. On appreciation of evidence and after hearing the learned advocates for the parties, the suit was partly allowed, and while allowing the suit partly, the order for possession was passed that the possession of the mortgaged property, which has been redeemed, may be given symbolic, as per the judgment passed by the learned Civil Judge (JD), Jhalod dated 30.3.1984. It is against this judgment, Regular Civil Appeal No. 54 of 1984 came to be filed by the Appellant - Original Plaintiff. The First Appellate Court (District Judge, Panchmahals, at Godhra), on appreciation and scrutiny of the evidence, and after considering the rival submissions, dismissed the Appeal and also the cross-objections vide judgment and order dated 16.11.1987. Therefore, the present Second Appeal has been preferred by the Appellant - Original Plaintiff posing the substantial questions of law as stated above, on the grounds inter alia that both the courts below have committed an error in appreciating that on execution of mortgage deed (Exh.34 and Exh.35), their remained no right in favour of the Respondents mortgagee. It is also contended that both the courts below have failed to construe the mortgage deed (Exh.34 and Exh.35), which clearly suggest that the Respondent is not a tenant, and on redemption, the actual physical possession of the property has to be handed over to the Appellant - mortgagor. It is therefore contended that both the courts below have committed grave error in refusing the case of the Appellant for the actual possession.

Learned Counsel Mr. Suresh M. Shah for the Appellant referred to the judgments of both the courts below and submitted that, as observed in the judgment of the trial court, the very first issue regarding the title and possession of the suit property, that whether it is established by the Plaintiff that the suit property was of the ownership and possession of the Plaintiff. And the finding is given in affirmative. He has also referred to the mortgage deed (Exh.34 and Exh.35) and again emphasized that there is a specific recital stating possession and ownership of the Plaintiff and also about redemption that on repayment of the amount, the property would be redeemed and the possession will be handed over.

Learned Counsel Mr. Shah submitted that, it is also stated that during this period, it was not required to be rented out by the mortgagee to anyone. He again emphasized that there is specific mention that the suit property is in absolute ownership and possession of the Appellant and it has been handed over to the mortgagee for the purpose of use till redemption. Learned Counsel Mr. Shah, however, submitted that, admittedly there is no rent note with regard to the so called lease or the rent of the premises. He submitted that in the absence of any rent note or any lease agreement or any writing and inspite of specific recital in the mortgage deed (Exh.34 and Exh.35), the trial court has proceeded on the basis of entry in the electoral roll, which is at Exh.51. He pointedly referred to this aspect, and submitted that, as observed that the trial Court had proceeded that the assumption can be made that the Defendant was tenant and has further proceeded to assume that the rent receipt for the payment of rent may not have been given, for which, there may not be any written proof. Again, learned Counsel Mr. Shah referred to Exh.41 and Exh.42, which are the notices and the replies. He submitted that, therefore, both the courts have proceeded under misconception and had failed to appreciate material and evidence on record. He submitted that merely on the basis of oral evidence, without any corroborative evidence or any rent note or any other document, the presumption has been made about the tenancy rights. Learned Counsel Mr. Shah submitted that when the property in question is mortgaged with specific writing / recital in the mortgage deed that the possession will be handed over back on redemption, would suggest that the possession was given as part of the mortgage transaction. He submitted that, therefore, it is the right of the mortgagor to redeem the property, and once the right of redemption is accepted when he makes the payment, the property is required to be redeemed and the possession is required to be handed over back to the mortgagor.

Learned Counsel Mr. Shah submitted that in the mortgage deed (Exh.34 and Exh.35), there is no mention about the property having been already given on rent, or the occupation and possession by the tenant, or any tenancy rights or that there was a sitting tenant in the property. Learned Counsel Mr. Shah therefore submitted that if there is no such mention, the specific writing in the mortgage deed (Exh.34 and Exh.35) cannot be ignored, and without any basis, the presumption could not have been made about the tenancy rights and the possession by the tenant. Therefore, learned Counsel Mr. Shah submitted that the present Second Appeal may be allowed.

He also submitted that the scope of Second Appeal may be limited. It is well accepted that when the courts below have committed an error, it could certainly be examined. In support of his submission, he referred to and relied upon the judgment of the Hon''ble Apex Court in case of Kashmir Singh Vs. Harnam Singh and Another, and submitted that as observed in this judgment, the High Court may not interfere in concurrent findings of facts, but there are exceptions. He pointedly referred to the observation:

The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where

(i) the courts below have ignored material evidence or acted on no evidence;

(ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or

(iii) the courts have wrongly cast the burden of proof. When we refer to ''decision based on no evidence'', it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.

Therefore, learned Counsel Mr. Shah submitted that the present Second Appeal may be allowed.

Learned Counsel Ms. Dhara Shah appearing for learned Senior Counsel Mr. S.N. Shelat for the Respondents submitted that there are concurrent findings of facts, and therefore, considering the limited scope of Section 100 of the Code of CPC in Second Appeals, the present Second Appeal may not be entertained. Learned Advocate Ms. Shah has submitted that both the courts below have, on appreciation of evidence, have accepted about the tenancy rights and the possession with the tenant, which cannot be brushed aside. She also referred to the judgment as well as the document / lease / mortgage deed at Exh.34 and Exh.35 and also evidence of both the sides, and tried to submit that in reply to the notice in 1976, the tenancy rights have been accepted. She also submitted that the deposition of the Defendant and one Vekhalchand has been referred which corroborates the say of the Defendant about the tenancy rights. She also submitted that though there may not be any rent note, the trial Court has observed that there may not be any such note and no receipt for the payment of rent may have been issued, and therefore, there may not be any proof. However, the witnesses, including the Defendant have been examined and even the electoral rolls also establishes about their residing in the premises. She therefore submitted that the present Second Appeal may not be entertained.

In rejoinder learned Counsel Mr. Shah submitted that the rights and liabilities regarding the mortgage transaction are governed by the mortgage deed. However, the mortgage deed provides for redemption and it is the right of mortgagor to redeem the property on repayment of the dues. He therefore, again submitted that, in the absence of any mention in the mortgage deed, presumption about tenancy right cannot be made.

In view of the rival submissions, it is required to be considered whether the present Second Appeal can be entertained or not.

It is well accepted that the scope of exercise of discretion u/s 100 of the CPC in Second Appeals is very limited.

The Hon''ble Apex Court in a judgment in case of Gurdev Kaur and Others Vs. Kaki and Others, has laid down the guidelines that unless there is a substantial question of law, High Court should not interfere in Second Appeals. Further discussion is also made with regard to the scope and ambit of exercise of discretion u/s 100 of the CPC in Second Appeals after the amendment in CPC in 1976. At the same time, the High Court may not be a Court of fact finding, and therefore, the findings of facts arrived at by both the courts below, would normally not be disturbed, unless the approach and / or application of law is erroneous or there is an error in construing the provision of law or a document resulting in miscarriage of justice. As rightly referred to by learned Counsel Mr. Shah relying upon the judgment of the Hon''ble Apex Court in case of Kashmir Singh v. Harnam Singh and Anr. (supra), it has been specifically observed, which is quoted hereinabove that, though as a general rule, the High Court will not interfere with the concurrent findings of the courts below. At the same time, it is not a absolute rule and it is subject to exceptions which have been enumerated. The facts of the case would therefore fall in the exceptions with regard to the appreciation of material evidence and drawing the inference without any basis or foundation. The exceptions which have been enumerated provide:

the courts have drawn wrong inferences from proved facts by applying the law erroneously.

As discussed hereinabove, admittedly, the property in question has been mortgaged as per the mortgage deed (Exh.34 and Exh.35). The recital in the mortgage deed, as emphasized by learned Counsel Mr. Shah, clearly state about the fact that it is of absolute ownership and possession of the mortgagor, and it further states about the possession at more than one place. It also clearly states that for the amount received, the property in question is mortgaged by execution of a mortgage deed and possession as well as parted with. It is also stated that such mortgagee will be entitled for the use of the property till the amount is repaid for redemption. It further states that the mortgagee shall not transfer in any manner to anyone and realize any rent out of such property. It does not refer about the fact that the property in question is already rented out or about the sitting tenant having the tenancy rights. It is required to be mentioned that, if it was so, then, at the time of execution of mortgage deed, necessary clarification could have been made in the mortgage deed which have been executed. There is nothing on record. Admittedly, there is no rent note executed. Further, there is not even a receipt for payment of rent.

It is in this background, on the basis of evidence on behalf of the Defendant, that is his own say corroborated by other witnesses, the presumption is made about tenancy rights by the trial Court that presumption can be made that the Defendant tenant was having the possession and there was a tenancy rights. It is also stated that though there may not be any rent note or any receipt for payment of rent, there may not be any proof. However, there is an entry in the electoral roll. The reference is made to notice and the reply also. A close look on the said document along with mortgage deed (Exh.34 and Exh.35) clearly suggest that no such inference about tenancy right of the sitting tenant can be readily accepted or even inferred. The courts below have proceeded on a wrong premises without any basis or the foundation. It is well accepted that when there is transaction of mortgage, it will be governed by the recitals in the deed of mortgage, which does not admittedly refer to any such tenancy rights. On the contrary it clearly states about the possession handed over pursuant to such mortgage deed as part of transaction of mortgage with stipulation for redemption on repayment. Further, if there was a sitting tenant, such a clarification could have been made in either of the two mortgage deeds, which is not there. The notices and replies have to be read together and though a reference is made to the tenancy rights, admittedly, there is no rent note and no receipt, and this is mentioned in the notice, which is disputed.

It is in these circumstances, the moot question, which is required to be considered is that, when transaction for mortgage has been made, in which the mortgage deed has been executed, such a transaction has to be governed as per such document namely mortgage deed and recitals therein. The transaction and recital in the mortgage deed does not refer to any such right, and as discussed above, on the contrary it clearly states about the absolute ownership and possession of the mortgagor and also the fact that the possession is handed over to the mortgagee pursuant to such mortgage deed, subject to the right of redemption on repayment. Therefore, one is required to construe this document, and for deciding such an issue, the evidence, including the documentary evidence is required to be construed and appreciated. On the one hand, admittedly, such mortgage deed is there, which is confined only to a mortgage transaction and does not mention about any tenancy right of a sitting tenant, and on the other hand there is no rent note, no rent receipt, and still the tenancy rights are recognized as a sitting tenant based on the oral evidence only. Therefore, when there is a specific transaction for mortgage, for which mortgage deed is executed with recitals therein, it has to be construed accordingly as per the stipulation in the mortgage deed. For appreciating the transaction, the stipulation in the mortgage deed has to be construed. Such a specific stipulation in the mortgage deed cannot be ignored or overlooked without any substantive evidence with regard to the tenancy rights of the sitting tenant in the absence of any rent note, rent receipt or any other evidence merely based on the oral evidence.

It is in these circumstances, the courts below have misdirected in totally giving a go by to the recitals in the mortgage deed at Exh. 34 and Exh.35 and contrary inference has been drawn without any basis or foundation for the tenancy rights.

As discussed above, if there was any sitting tenant with tenancy right, it could very well have been mentioned in the mortgage deed when it was executed, which is not mentioned, and the mortgage deed Exh.34 and Exh. 35 on the contrary refers to the absolute ownership and possession of the mortgagor as discussed hereinabove.

It is in these circumstances, the present Second Appeal deserves to be allowed, as both the courts below have misdirected and committed an error in drawing the inference without any basis for the tenancy right ignoring the specific document like mortgage deed (Exh.34 and Exh.35) with recitals therein. Thus, the courts below have failed to construe properly the mortgage deed (Exh.34 and Exh.35), which has resulted in miscarriage of justice.

In the result, the present Second Appeal deserves to be allowed. Accordingly, the impugned judgment of the First Appellate Court in Regular Civil Appeal No. 54 of 1984 confirming the judgment of the trial Court in Civil Suit No. 17 of 1981 is hereby quashed and set aside with direction for redemption of the mortgaged property with actual physical possession to be handed over instead of symbolic possession. Rule is made absolute accordingly. No order as to costs.