Kapadia, J. - (1.) This is an appeal by special leave filed by appellant-plaintiff against the judgment dated 4th August, 1998 of the High Court of Karnataka confirming the judgment and order dated 6th February, 1993 passed by the District Judge, Mysore dismissing the suit filed by the appellant-plaintiff holding inter alia that Ex. P.5 dated 1-10-1976 was only a device to get over the provisions of the Karnataka Rent Control Act, 1961 (hereinafter referred to for the sake of brevity as "the said Act, 1961").
(2.) The undisputed facts are as follows : Appellant-Kaveripatnam Subbaraya Setty Annaiah Setty Charities Trust was the owner of an old building in which there were 8 to 9 shops situated in Rave Beedi. In 1950 one of the shops was let out to the respondent-defendant as a tenant. In the year 1969, the appellant conveyed to the respondent and other tenants of the old building its desire to demolish the old building and in its place to erect modern shops so that higher rent could be fetched. Respondent herein surrendered his shop in the old building on 27-8-1969 after receiving notice from the appellant indicating its intention to demolish the old building and to construct a new building. Some of the tenants refused to surrender. Appellant filed eviction petitions against those tenants under the said Act, 1961. They were evicted under the orders of the Court. Respondent herein and the trustees belonged to the same community and, therefore, he surrendered possession of his shop pursuant to the above mentioned notice. The old building was demolished in 1969 and the construction of the new building was completed by 1975. On 10-10-1975, the respondent called upon the appellant to re-let the shop in the new building as he was a tenant in the old building to which no reply was given by the appellant.
(3.) On 1-10-1976, Ex. P.5 was entered into between the appellant and the respondent. In Ex. P5, it was recited that the appellant was in need of money and, therefore, a redeemable mortgage for three years had to be executed for Rs. 16,200/- in favour of respondent. Under Ex. P5, the said sum of Rs. 16,200/- was to be repaid in full by virtue of respondent being in possession and enjoyment of the shop for three years. On 4-10-1976, the respondent paid Rs. 16,200/- to the appellant against delivery of possession. The mortgage period expired on 1-10-1979.;