Madhya Pradesh High Court
Jyoti Prakash Tamrakar vs Ramswaroop Gupta on 30 November, 2023
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
ON THE 30 th OF NOVEMBER, 2023
SECOND APPEAL No. 275 of 2022
BETWEEN:-
JYOTI PRAKASH TAMRAKAR S/O SHRI BALLE
TAMRAKAR, AGED ABOUT 49 YEARS, OCCUPATION:
SELF EMPLOYED, R/O TAMRAI MOHALLA, NEAR DR.
DIXIT, TEHSIL AND DISTRICT CHHATTARPUR M.P.
.....APPELLANT
(BY SHRI ANUJ AGRAWAL - ADVOCATE)
AND
RAMSWAROOP GUPTA S/O RAMDAS KANDIYA, AGED
ABOUT 57 YEARS, OCCUPATION: NIL, R/O NEAR
CHOWK BAZAR, CHHATARPUR M.P.
.....RESPONDENT
(BY SHRI AMOD GUPTA - ADVOCATE )
This appeal coming on for admission this day, th e court passed the
following:
ORDER
This second appeal has been preferred by the defendant/appellant
challenging the judgment and decree dated 18.11.2021 passed by 1st Addl.
District Judge, Chhatarpur in regular civil appeal no.98/2016 affirming the
judgment and decree dated 27.02.2016 passed by 2nd Civil Judge Class-II,
Chhatarpur in civil suit no.62A/2009 whereby Courts below have decreed the
plaintiff/respondent's suit filed for redemption of mortgage and recovery of
possession of shop.
2. Learned counsel for the appellant/defendant submits that the suit shop
belongs to Dhanushdhari ji Mandir and the appellant is tenant of the temple on
rent of Rs.800/- per month. He further submits that the alleged document of
usufructuary mortgage dated 30.08.1996 (registered on 06.09.1996) (Ex.P/1) is
a sham and forged document and the plaintiff being manager of the temple, had
no right to mortgage the shop and infact he let out the property to the defendant
on behalf of the temple. He further submits that in absence of proof of
registered mortgage deed (Ex.P/1), it cannot be said to be a proven document
and on that basis, the suit for redemption could not have been decreed. With
these submissions, he prays for admission of the second appeal.
3. Learned counsel appearing for the respondent supports the impugned
judgment and decree passed by Courts below and prays for dismissal of the
second appeal. However, in the light of order dated 31.01.1978 (Ex.P/8) passed
by SDO, he accepts that the plaintiff is caretaker of the temple in question.
4. Heard learned counsel for the parties and perused the record.
5. The plaintiff in paragraph 1 to 6 of the plaint has, clearly pleaded that he
mortgaged the shop in question with the defendant for an amount of Rs.5,000/-
for a period of 5 years by executing registered mortgage deed dated 30.08.1996
(registered on 06.09.1996) (Ex.P/1) and by filing written statement although the
defendant has taken plea that he is tenant of the temple in question on behalf of
the plaintiff but nowhere he has denied from execution of mortgage deed and in
paragraph 14 of his statement before the Court, has admitted that in place of
rent note, mortgage deed was executed.
6. Hence, in my considered opinion it cannot be said that the defendant has
denied execution of the mortgage deed in question and the plaintiff was required
to prove the same, however, the plaintiff has by adducing oral evidence
sufficiently proved the execution of mortgage deed. Upon consideration of the
entire material available on record, Courts below have also found proved
execution of the document of mortgage.
7. In view of the aforesaid, the status of defendant in the suit shop is that of
mortgagee and not of tenant. Although the defendant has taken plea that he is
tenant in the suit shop on rent of Rs.800/- per month, but there is no pleading
in the written statement that he has ever paid such rent to the temple or to the
plaintiff since after execution of the mortgage deed (Ex.P/1), therefore, the
contention made on behalf of the defendant in respect of his status as that of
tenant, cannot be accepted and has rightly been denied by Courts below.
8. In view of the aforesaid admitted and proven facts, in my considered
opinion, learned Courts below have not committed any illegality in decreeing the
suit for redemption of mortgage and for restoration of possession.
9. Resultantly, in absence of any substantial question of law, this second
appeal fails and is hereby dismissed in limine under Order 41 rule 11 CPC.
However, no order as to the costs.
10. Interim application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL)
JUDGE
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