HIGH COURT OF HIMACHAL PRADESH
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(1.) In this Regular Second Appeal under section 100 of the Code of Civil Procedure, the sole question for consideration of this Court is whether the learned first appellate Court has wholly misread and mis -appreciated the oral as also the documentary evidence adduced by the appellant while reversing the judgment of the trial Court and thus the findings arrived at by the said court are wholly arbitrary and perverse. On the consideration of the oral evidence alone read with the concession so made by the plaintiff in the trial Court, this question has to be answered in the affirmative
(2.) Shortly stated, the facts in the barest form for the purpose of understanding the real controversy arising between the parties are that respondent being plaintiff in the trial Court, filed a suit for possession of the land by redemption of mortgage. The land in dispute constituted of respective shares of the khatas detailed as under: - Old Khata No. Khatauni No. New Khata No. Khata uni. " Area Land 6 8 9 11 8K 14M 1/4 2K 3M 7 9 to 13 10 12 to 17 8K4M 3/16 3K 9M 8 14 11 18 3K18M 7/24 IK 3M 10 18 13 21 0 10M 7/48 0 1M (hereinafter referred to as the suit land). There is no dispute in between the parties that the suit land prior to the creation of the mortgage was under the tenancy of the appellant. The entire area measured 8 kanals and 14 marlas as per the entries reflected by jamabandi 1935 -56 (Ex P -3) mortgage was created on April 21, 1955 which resulted in the attestation and sanction of mutation Ex. PC - The consideration for the aforesaid mortgage was Rs 1,000. This factual position is not controverted by the parties before this Court.
(3.) The legal position is that if the land comprised the tenancy of a tenant is mortgaged to him with possession by the landowner and such land is subsequently redeemed by the landowner, the tenant was notwithstanding such redemption or any other law for the time being in force, be deemed to be the tenant of the landowner in respect of such land on the same terms and conditions on which it was held by him immediately before the execution of the mortgage as if the mortgaged land had never been executed", is not disputed. In other words, in case the appellant is found to be the tenant of the mortgaged land prior thereto then its redemption will have no effect upon his tenancy interest.;
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