Smt. Narayani Devi And Ors vs Ramesh Kumar And Ors

By the instant appeal, appellant-defendants have challenged judgment and preliminary decree dated 11.10.2017, passed by Additional District Judge No.1, Camp Mavli, District Udaipur (for short, 'learned trial Court'). Learned trial Court, by the judgment, while granting relief to respondent-plaintiffs, allowed redemption of mortgaged property and passed preliminary decree in favour of respondent-plaintiffs regarding suit property.

The facts, apposite for the purpose of this appeal, are that at the threshold, Jasraj Duggar and two others filed a suit against the original-defendant Magan Lal Prajapat for redemption of mortgaged property, a shop admeasuring 10ft.x10ft., situated at Fatehpur, Tehsil Mavli. The dimensions and neighbourhood of the shop are also mentioned in the plaint. As per the version of the respondent-plaintiffs, a registered mortgage-deed was executed by plaintiff No.1 Jasraj Duggar with the consent of plaintiff No.2 for a sum of Rs.25,000/-. As per the deed, the duration of mortgage was three years. The requisite possession of the shop was also handed over by the mortgagor to the mortgagee. After execution of the mortgage-deed, plaintiff No.1 received a sum of Rs.1,75,000/- from original-defendant and in lieu thereof, executed an agreement in his favour with the condition that in case plaintiff No.1 pays Rs.2,00,000/- to the defendant then possession of the mortgaged shop would be handed over to him. With the advent of time, the duration of mortgage expired and in the interregnum, plaintiff No.2 by registered sale-deed dated 31.01.2007 transferred his share in entire property including the shop to plaintiff No.3. The first-plaintiff, upon expiry of the mortgage period, asked original-defendant to hand over possession of the mortgaged shop. The request of first-plaintiff did not find favour of the original-defendant and therefore, to retain possession of the mortgaged shop, he filed a civil suit for permanent injunction before Civil Judge, Jr. Division, Mavli on 04.10.2007. During pendency of that suit, original-defendant also impleaded plaintiff No.3 and his brother Nirmal Kumar as defendants, although they were neither necessary nor proper parties. In the suit, filed by the original-defendant, the factum of mortgage was admitted by him besides the subsequent agreement.

Be that as it may, when original defendant adopted an obstinate posture vis-á-vis proposal of the first-plaintiff, on behalf of all the plaintiffs, a notice was dated 17.08.2008 was served calling upon him to accept Rs.2,00,000/- and to hand over possession of the mortgaged shop. In response to the said notice, original-defendant sent his reply on 01.09.2008, wherein he declined to hand over possession of the mortgaged shop. With all these averments, the respondent-plaintiffs claimed redemption of mortgage and a direction against the original-defendant to hand over possession of the mortgaged shop after accepting Rs.2,00,000/-. It is further prayed that defendants may be asked to pay Rs.2000/- per month as mesne profits for use and occupation of the mortgaged shop till possession is handed over.

The suit is contested by original-defendant refuting all the averments made in the plaint. In the written statements, defendants pleaded that plaintiff No.1 was not authorized to execute mortgage-deed. A plea is also raised on behalf of the original-defendant that in fact he is in occupation of the shop as tenant and his tenancy commenced somewhere in the year 1984, therefore, without initiating proceedings of eviction in accordance with law, he cannot be asked to vacate the disputed shop. It is also averred that mere pendency of the suit filed by the defendant cannot benefit the plaintiffs in the instant matter with the further prayer for seeking damages to the tune of Rs.5,000/-. An objection about non-accrual of cause of action to plaintiffs for filing suit is also incorporated in the written statement besides claiming protection of Rent Control Act as tenant by the defendant.

Learned trial Court, on the basis of pleadings of rival parties, settled six issues for determination, which were read in vernacular as under:

''1.आया वादग्रस्त दुकान (वाद के पैरा सं. 3 में वर्णित) दिनांक 04.08.05 को 25 हजार रूपये में प्रतिवादी के रहन बिल कब्ज रखी जिसका रहननामा निष्पादित किया गया?....वादी

2.आया वादीगण दो लाख रूपये अदा कर प्रतिवादी से वादग्रस्त दुकान रहन से बागुजाश्त करा खाली कब्जा प्राप्त करने के अधिकारी है? .....वादी

आया वादग्रस्त दुकान के उपयोग उपभोग के फलस्वरूप वादीगण तारीख दावा से दो हजार रूपये माहवार हर्जाना प्राप्त करने के अधिकारी है? ....वादी

आया प्रतिवादी वादग्रस्त परिसर में सन् 1084 से किरायेदार है जिसका वाद पर क्या असर है? .....प्रतिवादी 5. आया प्रतिवादी द्वारा प्रस्तुत स्थायी निषेधाज्ञा के वाद के लंबित रहते वादीगण कोई वाद में सहायता प्राप्त नहीं कर सकते? .....प्रतिवादी

आया रहननामा दिनांक 04. 08.05 स्वामी द्वारा नहीं किया गया जिसका वाद पर क्या असर है?....प्रतिवादी

सहायता ?''

In order to substantiate their claim, plaintiff-respondents examined five witnesses and placed on record registered mortgage-deed besides other documents, which were exhibited.

During pendency of the suit, first-plaintiff Jasraj Duggar and original-defendant Magan Lal Prajapat expired, and therefore, their legal representatives were brought on record.

To counter the evidence of respondent-plaintiffs, on behalf of appellant-defendants, Mukesh Prajapat appeared in the witness box and testified on oath besides tendering four documents. That apart, two more witnesses also appeared; viz., Kishan Singh & Nirbhay Singh.

Learned trial Court, thereafter, heard final arguments and after discussing the evidence threadbare decided Issue Nos.1 & 2 in favour of respondent-plaintiffs and against the appellant- defendants. While discussing the evidence of rival parties in entirety, the learned trial Court also dilated on Section 58(d) of the Transfer of Property Act, 1882 (for short, Act of 1882), which defines usufructuary mortgage, besides discussing Section 84 of the Act of 1882 which postulates cessation of interest of the mortgagee in certain contingencies. The learned trial Court also discussed provision under Section 83 of the Act of 1882. Upon appreciation of evidence and other materials available on record, the learned trial Court also made sincere endeavor to examine rights of a mortgagor to redeem within four corners of Section 60 of the Act of 1882. By relying on requisite documentary evidence tendered by respondent-plaintiffs, the learned trial Court completely repudiated the oral evidence of appellant-defendants as being self-contradictory and inconsistent, besides lacking reliability. Learned trial Court, in this behalf, has also invoked Section 92 of the Indian Evidence Act, 1872 (for short, 'Act of 1872'), which postulates with clarity and precision that documentary evidence excludes oral evidence. The learned trial Court further took note of a very vital fact that the testimony of all the witnesses of appellants are at variance for recording its conclusion that these testimonies are not inspiring confidence.

While switching on to Issue No.4, the onus to prove the same was upon appellant-defendants, the learned trial Court, upon appreciation of evidence, recorded a definite finding that appellant-defendants have failed to prove their status as tenant in the disputed shop after execution of mortgage-deed. While recording finding on Issue No.4 against appellant-defendants, the learned trial Court also noticed that witness of the appellants Mukesh Kumar (DW1) himself has admitted execution of mortgage-deed (Ex.2) in favour of his father. Apart from all these, learned trial Court also found serious pitfalls in the evidence of the appellants inasmuch as no material was placed on record to substantiate oral assertion of the witnesses regarding factum of tenancy after execution of mortgage-deed. Finally, the learned trial Court considering the embellished version of the witnesses of the appellants about execution of rent-deed by the original-defendant in favour of landlord observed in clear and unequivocal terms that there is no such averment in the written statement. Non-production of the alleged receipts was also considered by the learned trial Court and consequently relying on the authentic documentary evidence of respondent-plaintiffs, decided Issue No.4 against the appellants. The learned trial Court recorded a definite finding that appellants have failed to discharge their burden to prove Issue No.4.

Issue No.5 was previously decided by the Court, and therefore, switching on to Issue No.6, learned trial Court observed that execution of mortgage-deed by plaintiff No.1 is having no ramification on the maintainability of suit. The Court also concluded that it may be an inter-se dispute between the plaintiffs, which cannot benefit defendants. Eventually, Issue No.6 was also decided against the appellants. Lastly, Issue No.3 is decided by learned trial Court against the respondent-plaintiffs and in favour of appellants with a specific finding that respondent- plaintiffs have not tendered any evidence to substantiate claim of mesne profits for use and occupation of the mortgaged property.

I have heard learned counsel for the parties, perused the impugned judgment and also scanned the entire record of the case.

Upon examining the findings recorded by learned trial Court on Issue Nos.1 & 2, I am afraid there is no perversity in appreciation of evidence. As a matter of fact, the suit for redemption of mortgage was filed by respondents-plaintiff relying on a registered mortgage-deed and execution of the mortgage-deed (Ex.2) in favour of original-defendant by first-plaintiff is admitted in clear and unequivocal terms by DW1 Mukesh Kumar, who happens to be son of the original-defendant. In legal parlance, admission of a witness is the best evidence. Moreover, upon re-appreciation of evidence, it has also come to the fore that there is serious contradictions in the version of all the witnesses of appellants, which has been taken note by the learned trial Court to place reliance on admission of DW1 Mukesh Kumar.

Supreme Court, in Ahmed Saheb (Dead) by LRs. & Ors. Vs. Sayed Ismail [(2012) 8 SCC 516], laid emphasis that admission of a party in the proceedings either in pleadings, or oral is the best evidence, which needs no further corroboration. The Court held:

"It is needless to emphasize that admission of a party in the proceedings either in the pleadings or oral is the best evidence and the same does not need any further corroboration. In our considered opinion, that vital aspect in the case viz. the admission of the Respondent in the written statement about the rate of rent and the further admission about its non-payment for the entire period for which the claim was made in the three suits was sufficient to support the suit claim. The High Court failed to note the said factor while deciding the Second Appeal which led to the dismissal of the appeals. Even while eschewing Exhibit-69 from consideration, the High Court should have noted that the relationship of landlord and tenant as between the Plaintiffs and the Defendants was an established factor and the rate of rent was admitted as Rs. 800/- per year."

It is also noteworthy that the evidence tendered by respondent-plaintiffs to prove Issue Nos.1 & 2 has been tested by learned trial Court on the touchstone of relevant provisions contained under the Act of 1882, more particularly Sections 83 & 84 besides Section 60 of the said Act. While it is true that in first appeal, it is obligatory for the appellate Court to re-appreciate evidence but then in the event of affirming finding recorded by the trial Court, appreciation of the evidence by it need not be elaborate and with detailed discussion. The appellate Court is simply required to weigh the evidence and not to encumber judgment with unnecessary details. A finding of the first appellate Court, agreeing with the trial Court on a particular issue, need not to re-appreciate evidence or its effects. In totality, upon an objective analysis of the evidence, unhesitatingly, I may observe that learned trial Court has meticulously discussed the entire evidence for recording its affirmative finding on Issue Nos.1 & 2 in favour of respondent-plaintiffs. The said finding is based on sound reasonings.

In the matter of Girja Nandini Devi and Ors. vs. Bijendra Narain Choudhury (AIR 1967 SC 1124), Supreme Court has held that the appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court and observed that expression of general agreement with reasons given by the Court would ordinarily suffice. Relevant excerpts are as under:

"It is true that the High Court did not enter upon a reappraisal of the evidence, but it generally approved of the reasons adduced by the Trial Court in support of its conclusion. We are unable to hold that the learned Judges of the High Court did not, as is contended before us, consider the evidence. It is not the duty of the appellate court when it agrees with the view of the Trial Court on the evidence either to restate the effect of the evidence or to reiterate the reasons given by the Trial Court. Expression of general agreement with reasons given by the Court decision of which is under appeal would ordinarily suffice."

The law is trite that reliability of oral evidence is substantiated by material documentary evidence. As observed by learned trial Court, in the instant matter, the respondent-plaintiffs have not only tendered requisite oral evidence but further they have placed on record the relevant documentary evidence including registered mortgage-deed executed by first-plaintiff in favour of original-defendants. Therefore, in my view, the findings and conclusions recorded by learned trial Court on Issue Nos.1 & 2 is based on sound appreciation of evidence and the same cannot be faulted.

Adverting to Issue No.4, burden of which was on appellants defendants, suffice it to observe that after admission by DW1 Mukesh Kumar that first-plaintiff had executed mortgage-deed in favour of original-defendant, even if factum of tenancy existed between the rival parties vis-à-vis premises, which was given on usufructuary mortgage to the tenant, entitlement of the mortgagor landlord to recover possession is unquestionable. It is also noteworthy that while recording findings on Issue No.4, the learned trial Court has taken note of the serious pitfalls in the evidence tendered by the appellants. Learned trial Court, upon objective analysis, has recorded a definite finding that appellants have failed to discharge their burden in terms of Section 103 of the Act of 1872. It goes without saying that after admission about execution of mortgage-deed in favour of original-defendant, burden to prove about continuing tenancy of the appellants in the disputed premises was on the appellants, however, they failed to discharge. Even otherwise also, after execution of mortgage-deed in favour of tenant by the landlord such relations are eclipsed. Undeniably, after execution of mortgage-deed, the status of the tenant becomes of a mortgagee and that of landlord as mortgagor and in such a situation, being mortgagee, a tenant cannot claim protection of the Rent Control Act also.

Supreme Court in Tara Chand Vs. Sagarbai alias Chhaiyalibai [(2007) 5 SCC 392], while examining this issue, vis-à-vis, usufructuary mortgage, held:

"Indisputably, the relationship of the parties were governed by the provisions of the 1961 Act. It contains a non-obstante clause protecting the rights of the tenant. The right of a tenant, however, would be available provided the tenancy continues. Once, the tenant ceases to be a tenant, question of applicability of the said Act would not arise.

Whether the rights of a tenant would give way to rights of a mortgagor would essentially depend upon the terms and conditions of the mortgage. If the tenant surrenders the tenancy either explicitly or by necessary implication, the terms of the deed of mortgage shall prevail. Having surrendered the tenancy, it would not lie in the mouth of a mortgagor to contend that as he had been a tenant, he would be entitled to the rights of a tenant.

The right of a Usufructuary Mortgagor to redeem the mortgage and recover possession is well known, and with a view to enforce the same, a mortgagor may file a suit for redemption or may take recourse to the summary process of deposit and notice under Section 83 of the Transfer of Property Act.

A suit for redemption is essentially a suit for recovery of possession. When a debt is satisfied out of the usufructs of the property or otherwise, the mortgagor recovers possession on his title.

Therefore, in my considered opinion, by no stretch of imagination the finding recorded by learned trial Court on Issue No.4 can be categorized as infirm warranting interference. Likewise, the finding recorded by learned trial Court on Issue No.6 is also based on cogent reasons duly supported by legal provisions. While recording its finding on the said issue, the learned trial Court has taken care of Section 55 of the Act of 1882 by observing that the provisions relating to rights and liabilities of buyers and sellers can also be pressed into service in case of mortgagor and mortgagee. Besides that, learned trial Court has also considered Section 58(a) of the Act of 1882 while discussing Section 60 of the Act of 1882. The learned trial Court has also concluded that such dispute can be an inter-se dispute between real owner and mortgagor and in the instant matter, there is no inkling about inter-se dispute as both are the plaintiffs, therefore, objection of the appellant-defendants about maintainability of the suit is wholly untenable.

In totality, I have no reasons to take a different view from the learned trial Court in the backdrop of available material and the facts and circumstances of the case.

In view of affirmation of the findings on Issue Nos.1, 2, 4 & 6, I feel disinclined to interfere with the impugned judgment and preliminary decree passed by learned trial Court.

Resultantly, the appeal fails and same is hereby dismissed.

The costs are made easy.