Kishori Lal and Another vs Nohria Mal and Others

D.K. Mahajan, J.—This first appeal arises out of a suit for possession of a shop together with four Chobaras situate in Saddar Bazar, Mandi Dhuri. District Sangrur.

Rulia Singh, the owner of the shop in dispute, rented it out to Kishori Lal sometime in 1937. On Rulia''s death, his son, Balwant Singh, succeeded to him. On the 27th of October, 1941, Balwant Singh mortgaged the shop in suit to Roshan Lal Hukam Chand and Jagmohan Lal to secure an advance of Rs. 2,500/-. The mortgage amount was further increased to Rs. 5,000/- on the 3rd of June, 1945. On the 2nd of June, 1956, another sum of Rs. 1,000/- was taken and the shop was mortgaged with possession with the mortgagees, Roshan Lal and others. The plaintiffs, Nauhria Mal, Tej Pal and Prem Chand purchased the shop in suit from Balwant Singh for Rs. 9,500/- under a registered deed of sale dated the 19th of February. 1962. On the 14th of January, 1963, they redeemed the shop by paying Rs. 6,000/-, the mortgage money, to the mortgagees.

The present suit was filed by the plaintiffs against Kishori Lal and his son Prem Chand and Charanji Lal son of Bakhshu Mal. Charanji Lal is the brother of Kishori Lal. Balwant Singh, the original mortgagor, along with mortgagees, Roshan Lal and others, were impleaded as defendants. So also the firm Kishori Lal Prem Chand. Bakhshu Mal was stated to be a sub-tenant of defendants Nos. 1 and 2, Kishori Lal and Prem Chand. The suit was for possession by eviction of defendants Nos. 1, 2, 3 and 6. The suit was resisted by the defendants. The stand taken up by Balwant Singh was that defendants Nos. 1 and 2 were tenants of the shop together with the Balakhanas before the mortgage; and at the time, when this property was mortgaged with defendants, Roshan Lal and others, with possession, defendants Nos. 1 and 2 were in possession of the same as tenants. The stand taken up by Kishori Lal and his son was that defendants Nos. 1 and 2, proprietors of the Firm Kishori Lal Prem Chand, have been doing business at the shop in suit since 1953 and right up to date; and they have been in possession of the shop as tenants since 1938, It was maintained that they being the tenants of the mortgagor attorned to the mortgagee and after the redemption of the mortgage, their tenancy under the mortgagor would revive.

The trial Court decreed the suit holding that:--

"From this evidence on record it Is proved beyond doubt that Kishori Lal was a tenant of Rulia Singh father of Balwant Singh in 1994 BK. x x x x x From 1947 to 1955, no rent deed has been produced which would show that Kishori Lal continued to be a tenant of Balwant Singh. On 5th August, 1956, Kishori Lal and Prem Chand executed a rent-deed in favour of the mortgagees for the first time though the mortgage subsisted from 1941. In 1948, Balwant Singh himself had executed a rent-deed. Exhibit P. 6, in favour of the mortgagees and have acknowledged them as his landlords. So the position of Kishori Lal was not that of a tenant, but could be considered as that of a sub-tenant; and when he executed the rent-deed in favour of the mortgagees, he did not merely attorn to the mortgagees but a new contract of lease was made.

Against this decision, the present appeal has been filed by the tenants. Kishori Lal and Prem Chand.

The only question, that requires determination, is, whether a new tenancy came into being between the mortgagees and Kishori Lal and Prem Chand ? After going through the evidence, we are of the opinion that there was no new tenancy by Kishori Lal Prem Chand in favour of the mortgagees. The tenants, were to start with, the tenants of the mortgagor. After the mortgage, they attorned to the mortgagees; and on the redemption of the mortgage, their tenancy under the mortgagor, which had remained in abeyance, revived and they became the tenants of the plaintiff-mortgagors who had stepped into the shoes of the original mortgagor. We have taken this view of the matter for the reasons recorded in Jagan Nath v. Mittar Sain, Second Appeal No. 1 of 1967, decided today (13-3-1969) : AIR 1970 P 104) (FB).

The result, therefore, is that this appeal is allowed; the judgment and the decree of the trial Court is set aside and the plaintiffs'' suit for possession is dismissed. However, there will be no order as to costs.

Shamsher Bahadur, J.

I agree.

R.S. Narula. J.

I concur.