Sobha Ram vs Prem Chand and Ramesh Chand

Kuldip Singh, Judge

This appeal has been filed against judgment, decree dated 18.9.2001 passed by learned District Judge, Kullu in Civil Appeal No. 72 of 2001 affirming judgment, decree dated 5.1.2001 passed by learned Senior Sub Judge, Kullu in Civil Suit No. 35 of 1997. The appellant was defendant in the suit. The facts in brief are that the respondents No. 1 and 2 and their mother Smt. Kimatu Devi had filed a suit for possession by way of redemption of mortgage of 2 1/2 storeyed slate roofed house built on Khasra No. 862 measuring 0-12 biswas situate in Phati Dhalpur, Kothi Maharaja, Tehsil and District Kullu, more specifically described in the plaint. The further facts are that Satya Nand father of respondents and husband of Smt. Kimatu had executed Will dated 17.8.1972 bequeathing his estate creating limited rights in favour of Smt. Kimatu till her life time and thereafter rights were to revert back and inherited by the respondents No. 2 and 3.

Satya Nand had mortgaged one room and attic situated in the first and second floor of the house vide registered mortgage deed dated 1.3.1968 in favour of appellant for mortgage amount Rs. 600/-. The appellant since then is occupying the first and second floor of the house as mortgagee. After the death of Satya Nand and on the basis of registered Will, the respondents and Smt. Kimatu had become owner of the suit property. Smt. Kimatu became owner till her life time. The respondents have vested interest after the life time of Smt. Kimatu in the estate left by Satya Nand.

Smt. Kimatu had filed an eviction petition No. 4 of 1992 against the appellant for his ejectment u/s 14 of the H.P.Urban Rent Control Act, 1987 which was dismissed by the learned Rent Controller, Kullu on 9.12.1994 on the ground that there is no relationship of landlord and tenant between Smt. Kimatu and appellant. The suit property was mortgaged by Satya Nand deceased in favour of appellant vide mortgage deed dated 1.3.1968.

It has also been pleaded that Smt. Kimatu was owner in possession of the house in suit even during the life time of Satya Nand. Smt. Kimatu had constructed the house from her personal expenses, Satya Nand had no power to transfer or alienate the suit house in any manner. Satya Nand was managing the suit property alongwith his own property, mortgage created by Satya Nand was not legally binding upon Smt. Kimatu nor she had any knowledge of the same. Smt. Kimatu came to know of the mortgage only during eviction proceedings filed against the appellant. It has been pleaded that Smt. Kimatu and respondents were morally obliged to repay the debts of Satya Nand. The condition that room and attic in the occupation of appellant would be given to him on monthly rent of Rs. 20/- is not binding and is clog on redemption. Smt. Kimatu and respondents were ready and willing to pay mortgage amount to appellant. The prayer for possession was made.

The suit was contested by the appellant by filing written statement. He took the plea of estoppel. It has been pleaded that the house was earlier mortgaged for Rs. 180/- in the year 1960 and the possession of the same was also delivered to appellant by Satya Nand. The appellant has become owner of the house by afflux of time being mortgagee for more than 30 years. On merits, it has been contended that Satya Nand was owner in possession of the house, who created oral mortgage in the year 1960 for Rs. 180/- with possession.

Satya Nand lateron took Rs. 420/- and mortgage debt became Rs. 600/-. Satya Nand executed registered mortgage deed on 1.3.1968 in favour of the appellant. Satya Nand after one month borrowed Rs. 500/�from appellant and mortgage debt became Rs. 1100/-. Satya Nand had agreed that even after the redemption of mortgage the appellant would be entitled to remain in possession of the house on Rs. 20/- per month rent. The mortgage has not been redeemed within a period of 30 years, the appellant has become owner of the house by afflux of time.

The replication was filed. On the pleadings of the parties, the following issues were framed:-

Whether the plaintiffs are entitled for possession of suit premises (house) by way of redemption of mortgage dated 1.3.1968 as alleged? OPP

Whether the defendant has become owner of the suit house/premises by afflux of time as alleged? OPD

Whether the plaintiffs are estopped from filing the suit by their acts and conduct? OPD

Whether this suit is not properly valued for the purpose of Court fees and jurisdiction? OPD

Relief.

The issue No. 1 was answered in affirmative and issues No. 2 to 4 in negative and learned Senior Sub Judge on 5.1.2001 passed a preliminary decree for possession by way of redemption of the mortgage on payment of Rs. 600/-. The appellant filed an appeal which was dismissed by learned District Judge, Kullu on 18.9.2001, hence second appeal.

Smt. Kimatu Devi died during the pendency of the second appeal. The second appeal has been admitted on the following substantial questions of law:

Whether the suit for possession could not be decreed in view of the stipulation contained in Ex.DW-2/A with regard to the right of the appellant/defendant to retain the possession of the suit premises even after the redemption on the basis of the monthly rental of Rs. 20/- ?

Whether the stipulation in mortgage deed, Ex.DW-2/A, dated 1.3.1968 with regard to the entitlement of the appellant/defendant to retain the possession of the suit property on the basis of the monthly rental of Rs. 20/- even after the redemption of the mortgaged property i.e. the suit property is binding on the parties?

I have heard learned counsel for the parties and have also gone through the record. On behalf of the appellant, it has been submitted that the two Courts below have erred in decreeing the suit for possession. There is a stipulation in mortgage deed Ex.DW-2/A that appellant would be entitled to retain possession of the suit premises even after redemption on payment of Rs. 20/- per month rent. This stipulation is binding on the respondents. On the contrary the learned counsel for the respondents has submitted that this stipulation in mortgage deed is not binding on the respondents as this stipulation is a clog on redemption. The learned counsel for the respondents has supported the impugned judgment and decree.

The aforesaid substantial questions of law No. 1 and 2 are interconnected, therefore, both of them are taken up together for determination. The mortgage deed Ex.DW-2/A dated 1.3.1968 has been proved on record. The two Courts below have recorded finding of fact that mortgage of the house in question was created by Satya Nand in favour of the appellant on payment of Rs. 600/-. The appellant is in possession of the house as mortgagee. It has come on record that earlier eviction petition was filed u/s 14 of the H.P.Urban Rent Control Act against the appellant which was dismissed by learned Rent Controller, Kullu on 9.12.1994 holding existence of no relationship of landlord and tenant. It was held that the appellant was mortgagee under Satya Nand, predecessor-in-interest of the respondents. The learned counsel for the appellant has contended that in registered mortgage deed Ex.DW-2/A there is a stipulation that appellant would continue in possession as tenant in the house on payment of Rs. 20/- per month.

In Gobind Ram and another vs. Rajphul Singh and others AIR 1973 Punjab and Haryana, 94, the trial Court held that condition of tenancy was a clog on equity of redemption and, as such, unenforceable. The first appellate Court affirmed the findings of the trial Court and dismissed the appeal. The High court held the chances of vacation of such premises become very bleak and the condition in mortgage deed to retain possession as a tenant after redemption is harsh and burdensome and amounts to a clog on equity of redemption. Such a clause cannot be enforced after the property has been redeemed. The decision of the learned District Judge is correct on this issue which was affirmed.

The appellant in the present case has taken the plea that after redemption as per mortgage deed Ex.DW-2/A he is entitled to continue in possession of the house as tenant on payment of Rs. 20/- rent per month. The stipulation in the mortgage deed to continue as tenant obstructs the right of the mortgager to get possession. It is harsh and burdensome. It is well known that only on limited grounds the tenant can be evicted under the Rent Control Act. The landlord is required to prove his case as per statutory requirement and only then he can get possession of the rented premises under Rent Control Act. The wish of landlord is not enough. In the facts and circumstances of the case, the learned District Judge has rightly held that stipulation that appellant would continue as tenant in the house on payment of Rs. 20/- per month rent is clog on redemption and is not binding on the respondents. There is no merit in the appeal. The substantial questions of law No. 1 and 2 are decided against the appellant.

No other point was raised. In view of above discussion, the appeal fails and is accordingly dismissed with no order as to costs.