NIRMAL CHANDRA Vs. VIMAL CHAND

JUDGEMENT

(1.) This appeal has been preferred against the judgment and decree dated August 30, 1996 passed by a learned single Judge of Madhya Pradesh High Court, Gwalior Bench allowing the revision-petition preferred by the respondent-Vimal Chand and setting aside the order passed by the trial Court by which the respondent was directed to hand over the physical possession of the disputed property to Nirmal Chandra in proceedings under S. 83 of the Transfer of Property Act.

(2.) The controversy involved in this case relates to the nature of possession of a tenant-mortgagee and the obligations of the respective parties in the event of redemption of mortgage in so far as it relates to the possession of such properties. We have heard learned counsel appearing for the parties and have also gone through orders passed by the Courts below.

(3.) The respondent-Vimal Chand is a tenant of the appellant-Nirmal Chandra in respect of a shop situate at Pared Chauraha, Bhind, Madhya Pradesh. It is not in dispute that the tenancy of the said shop had been coming down since long. The appellant-landlord however, executed a mortgage deed, duly registered, in respect of the shop in question in favour of the tenant-respondent-Nirmal Chandra. The mortgage was for a sum of Rs. 10,000/-. The mortgage deed was executed on 19-4-1973. According to the appellant he was handed over the possession of the property. According to the terms and conditions of the mortgage the appellant was entitled to get the mortgage redeemed on expiry of ten years. On completion of ten years the appellant requested the respondent to receive the mortgage money and redeem the mortgage and a notice is said to have been served on 6-12-1983 but it brought no results. Hence, he moved a petition under S. 83 of the Transfer of Property Act in the Court of a Civil Judge by depositing a sum of Rs. 10,000/- in the Court. The respondent-tenant filed its reply contesting the case of the petitioner-landlord in respect to the possession of the property. The execution of the mortgage deed was not denied but it was pleaded that he has been tenant of the accommodation in question since a long time and according to the conditions of the mortgage agreement rent and the interest was agreed to be equal. The delivery of possession on mortgage was only symbolic in nature and the tenant-respondent namely, the mortgagee continued to be in possession. This position has not been disputed before us during the hearing of the case.