KEWAL KRISHAN Vs. RAJ KUMAR

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) Shri Vikas Mohan Gupta, learned counsel appearing for the 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.