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Kewal Krishan v. Raj Kumar - RSA-1506-2001 [2006] RD-P&H 2040 (27 March 2006)

R.S.A. No.1506 of 2001 1


R.S.A. No.1506 of 2001

Date of decision: March 24,2006

Kewal Krishan v. Raj Kumar

Present: Shri Vikas Mohan Gupta, Advocate, for the appellant.

Shri Rajesh Gupta, Advocate,for the respondent.

Viney Mittal,J.(Oral)

The plaintiff-Trust is the appellant before this Court. It filed a suit for possession by way of redemption. It was claimed by the plaintiff- Trust that defendant was a mortgagee of the suit property vide a mortgage deed dated September 20,1989.

Defendant contested the suit and claimed that he was a tenant of the suit property.

The learned trial court dismissed the suit filed by the plaintiff.

The defendant was held to be a tenant of the suit property.

The matter was taken up in appeal by the plaintiff-Trust. The learned first appellate Court reappraised the evidence and came to the conclusion that prior to the mortgage in question, the defendant was a tenant of the suit property. The validity of the mortgage transaction was also upheld. In these circumstances, the learned first appellate court observed that even on creation of the mortgage between the parties there was no merger of the status of defendant as a tenant with that of the mortgagee.

Consequently, the appeal filed by the plaintiff-Trust was partly allowed. A preliminary decree for redemption of the mortgage was passed. It was directed that the plaintiff-Trust would be entitled to redeem the mortgage on payment of the mortgaged amount. However, it was held that on redemption, the status of the defendant as a tenant would revive.

Shri Vikas Mohan Gupta, learned counsel appearing for the R.S.A. No.1506 of 2001 2

plaintiff-appellant has argued that the first appellate court has committed an error in law inasmuch as the defendant had been conferred two independent status. He has been held to be a mortgagee of the suit property and his tenancy rights have also been maintained. In these circumstances, the learned counsel argues that the plaintiff-trust is left with no remedy but to seek the possession of the suit property.

I am afraid that the aforesaid argument is misconceived in law.

The learned first appellate Court has noticed the facts and has held that prior to the creation of the mortgage,the defendant was a tenant on the suit property. On creation of the mortgage, the relationship of the parties became that of the mortgagor and mortgagee but at no point of time the tenancy rights of the defendant were surrendered. On redemption of the mortgage, the tenancy of the defendant shall stand automatically revived. Thereafter, the relationship between the parties shall be that of landlord and tenant. As a landlord of the suit property, the plaintiff-Trust would always have its remedy to seek ejectment of the tenant in accordance with law.

No question of law, much less any substantial question of law arises in the present appeal.

With the aforesaid observations, I do not find any merit in the present appeal. The same is, accordingly, dismissed.

March 24,2006 ( Viney Mittal )

sks Judge


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