- (1.)In this Civil Appeal an interesting question arises for decision. One Nand Singh and Dr. Thakar Singh filed a suit for recovery for possession of various shops cum vacant sites situated in the main Bazar of Moga Town against 14 defendants. The suit property had been mortgaged to one Suba Singh and Saudagar Singh, defendants 1 and 2, for a sum of Rs.26,000/- vide registered mortgage deed dated 9th March 1942. After taking an additional amount of Rs.3,000/- from the aforesaid Suba Singh and Saudagar Singh, the plaintiffs executed an additional registered mortgage deed dated 3rd March 1943. The material terms of the mortgage deed dated 9th March 1942, with which we are concerned, reads as follows:
"Now we the executants while in our full senses and with our free will having mortgaged with possession the aforesaid shops, Ahatas including lane passage together with material (malba) chob kari (wooden shafts) etc., including well together with right to ingress and egress convenience and residence in favour of Suba Singh s/o Mutsada Singh, caste Jat resident of Wara Bhai and Saudagar Singh son of Sh. Rattan Singh caste Jet r/o Jawahar Singh Didar Singh wala in equal share for a sum of Rs.26,000/- (Twenty Six thousand) only half of which comes to Rs.13000/- (Thirteen thousand) only possession of which has been given to them. The present mortgagees shall get the actual possession from the previous mortgagees after paying their mortgage money to them and after getting the land redeemed from them. The mortgagees are competent either to be in occupation themselves or to give on rent to anyone. Whenever the total mortgage money is paid in two lots the half of the mortgage property shall be got redeemed in two lots at the discretion of the mortgagors. The redemption of southern side of the lane shall be deemed to be half and that of the northern side shall be other half, meaning thereby that it will be discretion of the mortgagors to redeem the southern side of lane or the northern side on receipt of the half of the mortgage money. We shall be liable for any proceedings arising out of any objection thereto. We shall also be liable to make good the loss or damage caused to the mortgagees on account of any legal or factual defect in the mortgaged property. The expenses for white washing and plastering shall be borne by the mortgagees, but the expenses of repairs and reconstructions shall be borne by us, the executants. In case of our failure, the mortgagees shall get it done after giving notice to us and then we shall be liable to pay the expenses borne by the mortgagees. On the payment of mortgage money when the mortgage money is paid, from that day on taking possession we shall be entitled to receive rent in future."

(2.)On 25th August 1969, the plaintiffs redeemed the mortgaged properties by depositing a sum of Rs.29,000/- . The cause of action for filing the present suit arose on account of the fact that physical possession of the suit property was not handed over to the plaintiffs even after the redemption of the mortgaged property. The defendants 1 and 2 are said to have rented out portions of the suit property to defendants 3 to 14. Since the defendants failed to deliver possession, the plaintiffs filed a suit for possession and recovery of damages. In the Trial Court, a number of issues were struck between the parties. In the present appeal, we are concerned basically with Issue 4, which reads as under:
"Whether the suit is barred under the provisions of the Rent Restrictions Act -

The Trial Court decided the case on all 11 issues and held that on a true reading of the mortgage deed, the mortgagor had recognized the tenants of the mortgagee whose tenancy therefore did not come to an end with redemption of the mortgage. In First Appeal, the High Court of Punjab and Haryana did not go into any of the other issues including the issue as to whether the tenancies were created before or after the execution of the two mortgage deeds. It held on a reading of a clause in the first mortgage deed that since the mortgagors would be entitled to future rent after redemption, it is clear that the mortgagors recognized all tenants created by the mortgagees during the subsistence of the mortgage. Issue No.4 was answered accordingly and the suit for vacant possession of the suit property from defendants was held not to be maintainable in law.

(3.)Learned counsel for the appellants raised a two-fold contention before us. Firstly, a correct reading of the two mortgage deeds would only lead to the conclusion that on redemption all tenancies created by the mortgagees would cease to have any effect and would not be binding on the mortgagors. Alternatively, it was also argued that if it were found that on a true construction of the mortgage deed the mortgagors' right to redeem was in fact clogged such clog would not be countenanced by the courts and full effect of redemption including the right to take back possession of the mortgaged property free from all encumbrances would ensue. Learned counsel for the respondents basically supported the judgment under appeal and argued that it was clear from a reading of the mortgage deed that the mortgagors had in fact recognized tenancies created by the mortgagees and therefore the present suit would not be maintainable - the mortgagors have to go to a Rent Court to make out some ground of eviction against tenants recognized by them.