M. Jagannadha Rao, J. - (1.) The appellants are the legal representatives of the mortgagor, the original plaintiff in suit No. 388 of 1981 on the file of the Sub-Judge, Ist Class, Panipat, who sued for redemption of the usufructuary mortgage dated 15-4-1969 and for possession. The suit was dismissed by the Trial Court on 12-2-85, by the first appellate Court (appeal 47/13 of 1985) on 2-11-85 and by the second appellate Court (RSA. No. 797 of 1986) on 6-10-86 on the ground that notwithstanding the fact that the defendants executed the registered mortgage deed on 15-4-1969, the real relationship between the parties was as landlord and tenant and that the defendant could not be evicted except under the Rent Control law.
(2.) The plaintiff's case (supra) was that he mortgaged the entire shop and his 5/6th share therein and gave possession of the whole shop to the defendant for Rs. 1,000/-. Plaintiff sued for redemption and recovery of possession from the defendant on the abovesaid registered usufructuary mortgage. Interest payable by the mortgagor was to be set off towards the profits arising from use of property by the mortgagee. The mortgage deed stated that on redemption possession had to be delivered back to the mortgagor. On 1-2-1981 the plaintiff demanded production of the deed and possession on redemption. The defendant did not comply. Therefore, the present suit was filed.
(3.) The defence was that there was no relationship of mortgagor and mortgagee between the parties but that the relationship was as landlord and tenant. Defendant, however, admitted that the shop was in exclusive management of plaintiff at the time possession was given to him. The plaintiff allegedly leased to the defendant at Rs. 80/- P.M. and plaintiff had been receiving at that rate. These payments, it was said, were proved by the accounts of the defendant. The motive for executing the deed was stated as follows: "The plaintiff, further demanded that the defendant will have to execute the mortgage deed by way of collateral security in order to guarantee that the shop will be vacated by the defendant whenever demanded by the plaintiff. In fact, the said mortgage deed was to circumvent and to bye pass the provisions of the Rent Control Legislation. The alleged transaction of mortgage was only a sham transaction executed only with the aforesaid object. The consideration of Rs. 1000/- was only in nature of collateral security or pagri." It was also alleged that the plaintiff was a man of substance and very rich and there was indeed no occasion for him to mortgage the same for a petty sum. The plaintiff is alleged to have "demanded Rs. 1000/- by way of security and asked the defendant to thumb mark some writing to arm the plaintiff with a right to get the shop vacated according to his sweet will". The defendant was in dire necessity of the shop and had to agree on the said condition. The defendant, therefore, paid Rs. 1000/- and incurred Rs. 80/- towards expenses. The alleged mortgage was not the real transaction but it was a clever device to bye-pass the provisions of the Rent Act". The suit of the plaintiff was liable to be dismissed.;