Mangalas Velji And Co. vs Mohan Kumari And Ors.
2003 Latest Caselaw 1234 Del

JUDGMENT

R.S. Sodhi, J.

1. This appeal is directed against the judgment and order dated 8th January, 2002, of the Additional District Judge, Delhi, whereby the learned Judge, while dismissing the appeal filed by the appellant against the judgment and decree dated 23rd January, 1990, upheld the judgment of the trial court holding that the trial court was right in passing the decree of possession.

2. Brief facts of the case, as noted by the learned Additional District Judge, are as follows :

"The plaintiff filed a civil suit for redemption and recovery of surplus against the defendant. The plaitiff's case before the ld. Civil Judge was that the plaintiff was the mortgagor of the land bearing plot Nos. 54, 55 and 56 comprised in the Khasra No.26/3, situated in village Khureji, Shahdara, Delhi measuring 600 sq.yards of which, the defendant was mortagee. The property was mortgaged on 3.5.1967 for Rs.10,000/-. As per terms and conditions of the mortgage deed between the parties, it was agreed that the plaintiff mortgagor shall, within one month from the date of the registration of the mortgage deed, build, boundary wall, high, around the flat, one puce room with bricks and concrete a shed with bricks and concrete and a water pump and after completion of the aforesaid construction, the mortgagee shall become tenant of premises under mortgage at a monthly rent of Rs.1,50/-. On his failure to build the aforesaid construction, the mortgagor shall be liable to pay interest @ 9% p.a. and the plaintiff shall pay the mortgage money at the expiry of three years from the date of registration of the mortgage deed and mortgage was required to hand over the vacant possession of the mortgaged property to him. In case, mortgagor failed to pay the mortgaged debt on the expiry of the said period three years, the mortgagee shall continue to remain in possession of the premises for a further period of one year and shall pay rent for only six months at the aforesaid rate of Rs.1,50/- and thereafter, the mortgagee shall be at liberty to recover the mortgage money from the mortgaged property and security property. According to the plaintiff, mortgagee has remained in possession of the mortgaged property since the date of mortgage and has not paid any rent or profit of the mortgaged property to the plaintiff since 31.3.71.

3. Defendant No. 1, 3 and 5 contested the suit and pleaded that the suit is not maintainable because the plaintiff was allowed to redeem the mortgage within three years which period expired on 3.5.70. According to the defendant, the plaintiff did not redeem the mortgage in a further period of one year after the expiry said three years which period also expired prior to the filing of the suit. According to the defendant, the plaintiff has lost his right of redemption and defendant No.1 has become owner of the property. According to the defendant, suit is barred by principles of acquiescence and estoppel. According to the defendant, the plaintiff did not fulfill the conditions of the mortgage and he constructed only one room and boundary wall and affixed hand pump. According to the defendant, he constructed other portion. According to the defendant, the plaintiff did not make any payment on the demand. According to the defendant, old G sheet was replaced by the defendant in the godown. According to the defendant, he spent amount of Rs. 40,000/- over the construction of property in dispute.

4. The plaintiff filed replication reasserting the facts contained in the plaint and denying all the pleas taken in the written statement.

5. From the pleadings of the parties, following issues were framed by the Ld. Civil Judge:-

i) Whether the defendant No.1 has become owner of the property in question due to failure of plaintiff in fulfillling the terms and conditions of the mortgage?

ii) Whether the suit is barred by principles of acquiescence and estoppel?

iii) Whether the rent amount i.e. mortgage debt has been satisfied and plaintiff is entitled to redemption?

iv) Whether any improvement has been made by defendant No.1 in the suit property, if so, its effect?

v) Relief.

6. The plaintiff has examined Moti Ram as PW1, Indu Narain as PW2, Satish Chander official from department of Rehabilitation as PW3 and himself as PW4. Defendant examined Tribhuvan Jotshi as DW1."

7. It is argued by learned counsel for the appellant that it is not permissible to permit the mortgagee to redeem the property by way of adjustment of rent/interest/profits thereon. He further submits that even if redemption in the above-said manner is permissible, a suit for redemption and possession does not lie. He also submits that for reasons that the redemption have already taken effect, no suit to redeem the property would be maintainable. He further submits that even if it is taken that the suit property stands redeemed, the tenancy created in favor of the appellant by virtue of mortgage is a separate issue which survives even through the property stands redeemed. He further submits that after redemption of property it is not permissible to grant future mesne profits on account of possession not being handed over.

8. Counsel for the respondents argues that under Section 60 of the Transfer of Property Act, certain rights accrue on redemption of the property, namely, possession had to be handed over and that respondents' suit for declaration of redemption and possession could not be faulted on the grounds that cause of action does not accrue. He further submits that in any event of the matter, the plaint clearly states that in the event there was any amount due on account of redemption, the court could very well ask for its deposit in discharge of the mortgage. He further submits that two courts of fact having inferred that the money was due from the appellant, there was no reason why a decree of possession could not be passed. On the question of tenancy, he submits that this was not the case set up by the appellant before the trial court where he claimed that he had become owner of the property in dispute. The question of tenancy never formed a lis between the parties and no issue thereon was framed. Consequently, in a Regular Second Appeal no fresh pleas can be allowed as the Supreme Court in Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar & Ors., JT 1999 (3) SC 164 has held that :-

"In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute its opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the apex Court, or was based upon inadmissible evidence or arrived at without evidence."

9. Having heard learned counsel for the parties and having gone through the material on record, I am of the view that liabilities of the mortgagor are controlled by the provisions of Section 60 of the Transfer of Property Act. The right to redeem remains intact so long as final decree is not passed. The plea of the appellant that he is a tenant was, therefore, rightly rejected by the courts below on this ground, which I endorse. It may also be mentioned that an application for amendment of the written statement to take up the plea that the appellant had become tenant when the mortgage was not redeemed within the stipulated time was rejected and that order became final. The plea of the tenancy, therefore, could not be entertained. The courts below have also held that the mortgage amount of Rs.10,000/- stood paid/adjusted which is a question of fact and cannot be reopened at this stage. To contend that adjustment by way of rent/use and occupation etc. could not be made towards redemption of mortgage, cannot be accepted. For there can be no bar as to the mode of redemption and so long as the redemption amount has been discharged, it would be perfectly valid to take the same into account for redemption of the property. As regards maintainability of the suit, it may be pointed out that on pleadings of the parties no issue to this effect was framed and in Regular Second Appeal no fresh ground can be allowed to be agitated, as has been held by the Supreme Court in the case of Kondiba Dagadu Kadam (supra).

10. In view of the above, I find no ground to interfere with the judgment under challenge. R.S.A. 60 of 2002 and C.M. 173 of 2002 are dismissed with, No order as to costs.