Decided on May 03,1950

Lala Som Nath Appellant
L.D. Desai And Ors. Respondents


- (1.) THESE two appeals are by the two Defendants in Suit No. 26 of 1946 tried by Ch. Tirath Dass Sehgal, Senior Sub -Judge of Gurdaspur. The suit was a redemption suit. The events giving rise to it are complicated, and some recital of them is necessary.
(2.) ON 1 -2 -1935 two persons Daulat Ram and Rattan Chand gave on lease to one Gosain Chandar Bhan certain land admeasuring 12 kanals and 12 marlas, being Khasra No. 6602/6170 in the town of Ratala in the Gurdaspur District. It is not necessary to mention terms of the lease other than its period which was twenty years and the monthly rent which was Rs. 36. Upon this land, Chandar Bhan constructed a cinema building in which he installed furniture and machinery necessary for use of the building as a cinema. This machinery he obtained from a Calcutta firm on a hire purchase agreement. On 14 -5 -1936 Chandar Bhan mortgage with possession his interest in the property, including land, building, furniture and machinery to one Fateh Ali for an amount of Rs. 12,500. This amount was provided by the mortgage deed to carry interest at 12 annas per cent, per month. On the same day as this mortgage was passed, a lease was executed by which Chandar Bhan became tenant of Fateh Ali on an annual rental of Rs. 1,000. On 7 -1 -1937, Chandar Bhan sublet the property to Janki Nath who is Defendant 2 in the present suit. This sub -lease was for a term of two years with an option of extension for a further two years. The rent was provided to be Rs. 375 per month or the nett profit of the cinema, whichever amount should be less, and there was provision for advance payment to amount of Rs. 1200. About the end of 1936 there had been default in making payments for the machinery under the hire purchase agreement, and on 16 -3 -1937, presumably after action by the Calcutta Co., the balance due for the price of the machinery was paid by Som Nath, who is the brother of Janki Nath and who is Defendant 1 in the present suit. It is common ground that little payment, if any, was made by Janki Nath after the sublease in his favour, and on 3 -7 -1937 Fateh Ali filed a suit against Chandar Bhan in ejectment and to recover arrears of rent. Janki Nath was joined as a party in this suit as subtenant. In the trial Court the suit was decreed against Chandar Bhan but dismissed against Janki Nath. Fateh Ali filed an appeal in the District Court from the dismissal of his suit against Janki Nath, which appeal was dismissed on 25 -2 -1939. Fateh Ali then filed a second appeal which resulted in a compromise decree passed on 4 -4 -1940. A week before this compromise decree was passed, namely on 28 -3 -1940, Fateh Ali conveyed all his interest in the property, including his interest in the litigation, to Som Nath, present Defendant 1 and brother of Janki Nath the Respondent in the appeal thon pending. At the time the compromise decree was passed, the acquisition by Som Nath of the interest of Fateh Ali was brought to the notice of the Court., and a statement of Som Nath agreeing to the compromise decree was filed. By this compromise Janki Nath submitted to a decree in ejectment and for payment of rent. Som Nath took no stop as assignee of the interest of Fateh Ali until immediately before the expiry of the period of limitation when, on 2 -4 -1943 he filed an execution Appellant On 6 -4 -1943 the name of Som Nath was substituted as assignee of the decree, and on 19 -9 -1943 a rent note was executed by Janki Nath in favour of Som Nath, by which Janki Nath purported to take the property as tenant of Som Nath on a monthly rent of Rs. 40 only. I understand that further rent notes in the same terms were passed subsequently by Janki Nath to his brother Som Nath.
(3.) ON 17 -1 -1944 the Plaintiff in the present suit purchased the equity of redemption in the mortgage of 14 -5 -1936 from Chandar Bhan and on 15 -3 -1944 the present Plaintiffs filed a suit in ejectment against both Som Nath and Janki Nath claiming that they were tenants. This suit was dismissed in November 1945, and an appeal from this dismissal was dismissed in January 1947, it being hold that Janki Nath was a tenant under the mortgagee Som Nath. The present suit for redemption was filed on 9 -3 -1946 during the pendency of the last mentioned appeal. By their present plaint Plaintiff claimed that both Defendant are mortgagees on the ground that their family and business is joint or at least they are partners. in the cinema business. The plaint refers to the pending litigation and the plea of Janki Nath in that suit that he is the tenant of Som Nath, states that Janki Nath is in possession of the property, and "on that account also has been made a party." Plaintiffs claimed that the mortgage had been satisfied from the income of the property, but alternatively asked, to redeem on payment of such amount as would be found due.;

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