- (1.) THIS is a regular second appeal filed by Pyare Lal Ram Gopal against the judgment and decree of Shri R. L. Anand, Additional District Judge, Patiala, dated November 5, 1984 whereby their appeal against the judgment and preliminary decree of Shri T. R. Bansal, Sub Judge, 1st Class Rajpura, dated June 11, 1981 passed in favour of Kamla Devi, Satya Devi and Jagdish Rai respondents No. 1 to 3, herein, for possession by redemption in respect of shops in dispute on payment of Rs. 20,000/- was dismissed.
(2.) ADMITTED facts are that: (i) Babu Ram and Janki Dass were the owners of five shops situated in the abadi of Rajpura. On 9. 6. 1941 vide registered mortgage deed Ex. PW8/a, they mortgaged all these shops with Ishar Dass for an amount of Rs. 6000/ -. (ii) on 18. 5. 1943, they effected the second mortgage of the said shops in favour of Basanta Ram, Mam Raj and Kishori Lal for Rs. 10,000/- vide mortgage deed Ex. PW8/b; (iii) on 8. 11. 1943, they effected third mortgage in respect of two shops out of the above five shops for an amount of Rs. 15,000/- in favour of Assa Ram. These two shops were in possession of Pyare Lal Ram Gopal appellants herein, as tenants; (iv) On 9. 6. 1945, they again mortgaged five shops for a mortgage amount of Rs. 20,000/- in favour of Panna Lal, Pishori Lal and Raghu Nath Dass in equal shares vide mortgage deed Ex. PW5/a. (v) Basanta Ram, Mam Raj and Kishori Lal redeemed the mortgage of the five shops from Ishar Dass; (vi) Assa Ram redeemed two shops mortgaged with Basanta Ram, Mam Raj and Kishori Lal; (vii) thus, then remained only two sets of mortgagees: (a) Assa Ram; and (b) Panna Lal, Pishori Lal and Raghu Nath Dass; (viii) On 4. 7. 1945, an agreement was entered into between the above said two sets of mortgagees, according to which Assa Ram received Rs. 5000/- from the other set of the mortgaged (Panna Lal, Pishori Lal and Raghu Nath Dass) and admitted himself to be a mortgagee of the shops in question alongwith them; (ix) Janki Dass having died S/smt. Kamla Devi and Satya Devi, respondents No. I and 2 herein, stepped into his shoes under a will. Smt. Gomti their mother, also died but in his life time she had bequeathed her share in favour of Smt. Satya Devi respondent No. 2. (x) Babu Ram also died and was succeeded to by Jagdish Rai Plaintiff-respondent No. 3, (xi) On the death of Assa Ram, his son Jugal Kishore respondent No. 4 succeeded to him. When Panna Lal died, his son Bachna Ram and daughters Somma, Kampa and Kasturi respondents No. 5 to 8 respectively, stepped into his shoes; and (xii) On the death of Raghu Nath Dass, his daughter Jhando respondent No. 1 succeeded to him. Thus, the relationship of mortgagors and mortgagees existed between the plaintiffs, S/smt. Kamla Devi, Satya Devi and Jagdish Rai on one hand and defendants No. l,2a,2b,2c,2d,3,4 and 5 on the other hand. Kapur son of Phagu Mal defendant No. 6, Pal Singh defendant No. 8 and Harbans Lal defendant No. 9 were in possession of shop each whereas Pyare Lal Ram Gopal defendant No. 7 were in possession of two shops as tenants under the mortgagees. It is, thus, clear that defendants No. 7 to 9 were tenants under defendants No. l,2a,2b,2c,2d,3,4,and 5. S/smt. Kamla Devi, Satya Devi, daughters of Janki Dass and Jagdish Rai son of Babu Ram, Plaintiffs, filed Civil Suit No. 55t/16. 4. 1980 against the mortgagees-defendants No. 1 to 5 and the tenants-defendants No. 6 to 9 for possession by redemption of all these five shops. The suit was contested. The mortgagee-defendants admitted the plaintiffs to be the mortgagors pleading that Assa Ram, Panna Lal, Pishori Lal and Raghu Nath Dass had become mortgagees in equal shares of these shops. Kapur defendant No. 6 put forward a case that his father Phagu Mal was inducted in his shop by Janaki Dass Mortgagor and when the shop was mortgaged with Assa Ram, he was already in possession thereof as a tenant under the mortgagor. After contest, Shri. T. R. Bansal, Sub Judge 1st Class, Rajpura passed a preliminary decree in favour of the plaintiffs vide his judgment and decree dated 11. 6. 1981. Pyare Lal Ram Gopal defendant No. 7 and Harbans Lal defendant No. 9 filed Civil Appeal No. 136 T/64 of 24. 7. 1981 whereas Kapoor Chand defendant No. 6 filed Civil Appeal No. l35-T/84 of 25. 7. 1981. Both these appeals were dismissed by Shri R. L. Anand, Additional District Judge, Patiala, by one single judgment dated 5. 11. 1984.
(3.) IT is that judgment and decree of the first appellate Court which has been appealed against by the defendants Pyare Lal Ram Gopal only and which requires my examination of its sustainability.;