M.S.LIBERHAN, J. - (1.) THIS judgment will dispose of Letters Patent Appeals Nos. 922 of 1985 and 923 of 1985, as they arise out of the same suit.
(2.) BY these appeals the appellants have assailed the judgment of the learned Single Judge decreeing the suit for possession by redemption but restricting the delivery of physical possession. Briefly, the claim of the appellants was that the land in dispute was owned by Mehanga Ram who mortgaged it with the Bank as security for the loan obtained by him vice mortgage deed, dated July 4, 1958. The bank obtained an award against Mehanga Ram from the Arbitrator and in its execution the rights of the Bank as mortgagee were sold and the same was purchased by defendants Kapur Singh and Tehal Singh on February 8, 1974. The sale certificate was issued in favour of the defendants. On may 15, 1975, Karnail Singh and Jarnail Singh purchased 68 Kanals 5 marlas of land vide sale deed. Exhibit P1, from Mehanga Ram brought a suit for possession by redemption of the land in dispute on payment of Rs. 31,000/- the mortgage money. The defendants took various defences. However, the only defence that survived for consideration was that the defendants claimed to be in possession as tenants of the land in dispute prior to the mortgage in question. The trial Court found that the land in dispute was purchased by the plaintiffs and the plaintiffs were entitled to the possession by redemptions as in COURT auction the defendants had purchased only mortgagee rights. The defendants were not found to be tenants before the mortgage. Resultantly, decree for possession by redemption on payment of Rs. 31,000/- was passed. On March 2, 1977 a final decree for possession was passed. The mortgagees preferred Regular First Appeal and the only finding challenged before the learned Single Judge was with respect to their being tenants on the land in dispute. It was claimed that they were tenants of the suit land prior to the mortgage. Consequently, they were entitled to retain the possession of suit land as tenants. Actual physical possession could not be delivered to the mortgagees in this redemption decree. The learned Single Judge reversed the findings of the trial Court and came to conclusion that the defendants were the tenants prior to the mortgage. Thus, the preliminary decree and the final decree were the tenants prior to the mortgage. Thus, the preliminary decree and the final decree were modified. The suit was decreed for redemption and the defendants were found to be entitled to the interest as the original mortgagee would have and the mortgagor would be entitled to the mesne profits between the date the auction purchaser got possession and the redemption. The case was remanded to the trial Court for accounting and passing the final decree.
(3.) THE learned counsel for the appellants contended that the learned Single Judge has not correctly come to the conclusion and erroneously relied upon Exhibits D1 and D2 which do not create a lease in favour of the mortgagees prior to the mortgage, nor even thereafter. The view of the learned SIngle Judge is erroneous and cannot be sustained. The learned counsel, after referring to Exhibit D1, argued that Mehanga Ram had not created any tenancy in favour of Kapur Singh vide, Exhibit D1 and in favour of Kundan Singh vide Exhibit D2. Paramjit Singh is none else but the son of Kundan Singh. There is no privity of contract between Mehanga Ram or his vendees with Tehal Singh or Paramjit Singh. Exhibit D1 was executed on July 21, 1973. Reference was made to the statements of Mehanga Ram, Kapur Singh (DW1) and Amar Nath (DW3).;