Date : 13/06/2012 1.00. Present Second Appeal under section 100 of the Code of Civil Procedure has been preferred by the appellants herein – original defendant Nos.6, 7 and 10 – original appellant Nos.2, 3 and 4 to quash and set aside the impugned judgement and decree passed by the learned trial court – learned 6th Joint Civil Judge (S.D.), Jamnagar in Regular Civil Suit 1246 of 1984 dtd.9/7/2002, by which the learned trial court has allowed the said suit declaring that the original defendant Nos.5 to 12 are tenants for the period of mortgage and that they are entitled to retain their possession of the suit premises after redemption of the mortgaged property bearing Nos.2,6,4,11 and by further directing original defendant Nos.5 to 12 to handover the possession of the suit properties to the plaintiff – respondent No.1 herein by further directing the original defendant Nos.5 to 12 to pay mesne profit at the rate of Rs.8 per month from the date of filing of the suit till the vacant and peaceful possession of the suit premises is handed over to the plaintiff. 2.00. That the appellants herein – original appellant Nos.2,
3 and 4 have also prayed to quash and set aside the impugned Judgement and Order passed by the learned appellate court - learned Principal District Judge, Jamnagar in Regular Civil Appeal No. 95 of 2002, by which the learned appellate court has dismissed the said appeal preferred by the appellants and others by confirming the judgement and decree passed by the learned trial court decreeing the suit.
2.01. That the respondent herein – original plaintiff instituted Regular Civil Suit No.1246 of 1984 against the appellants and others in the court of learned Civil Judge (S.D.), Jamnagar for redemption of the mortgage of suit properties against the original defendant Nos.1 to 4 and declaring the sale in favour of the original defendant No.4 with respect to one of the property as illegal and also for recovery of the possession from the defendant Nos.5 to 12 who are inducted as tenants by the mortgagee, after the mortgage.
2.02. It appears that the original plaintiff instituted aforesaid Civil Suit for redemption of the mortgage and recovery of the possession as the sole heir of one Kalyanji and according to him, he inherited the suit properties by succession. It was the case on behalf of the plaintiff that the suit property described at Sr.No.1 was mortgaged by the father and his uncle to one Soni Kalyanji and Jadavji Damji in the year 1986 as condition mortgage; that the property described at Sr.Nos.2 to 6 were mortgaged in the year 1899 to one Nagri Hansraj Parshottam etc. on conditional sale and the respective registered mortgage deeds were executed. According to the plaintiff, there was a conditional that the mortgage money to be paid on demand. That thereafter, Kalyajnji and Damji transferred their rights in the year 1900 to Soni Hansraj Parshottam. Thus, all the properties are in possession of Soni Hansraj Parshottam. According to the plaintiff, in the year 1928, Hansraj Parshottam executed one registered sale deed for Rs.4000/- with existing right of mortgage to the grand- father of the defendant Nos.1 to 3 – Shah Lalji Trikamji and since then the said properties were with him as mortgagee.
2.03. According to the plaintiff, thereafter the original defendant Nos.1 to 3 inducted defendant Nos.5 to 12 as tenants without the consent of the plaintiff. It is the case on behalf of the plaintiff that thereafter though defendant Nos.1 to 3 were in possession of the suit properties as mortgagees and the plaintiff has a right of redemption, defendant Nos.1 to 3 entered their names in the revenue records as owners on 12/10/1964.
2.04. In response to the public notice dtd.3/3/1965, plaintiff submitted objections before the City Survey Officer and the City Survey Officer passed an ex-parte order which was challenged by the plaintiff and thereafter the names of the defendant Nos.1 to 3's father was deleted and the name of the plaintiff and his deceased brother was entered. According to the plaintiff City Survey No.61 was sold to the father of the defendant No.4 for a consideration of Rs.750/- in the year 1968. It was the case on behalf of the plaintiff that thereafter the plaintiff issued notice dtd.14/2/1978 to the defendant Nos.1 to 4 by Registered Post AD for redemption of the mortgage and as the same was not complied with, the plaintiff is constrained to file the suit and sought relief for redemption of the mortgage against the defendant Nos.1 to 3 and to declare the sale deed of 1978 executed by the defendant Nos.1 to 3 in favour of the defendant Nos.1 to 3's father – defendant No.4 with respect to the property bearing Survey No.61 as illegal and ultra vires and for declaration that defendant Nos.5 to 12 are tenants for mortgaged period and are not entitled to stay in it and to direct them to handover the suit properties to the plaintiff. The plaintiff also prayed for mesne profit till possession is handed over to him.
2.05. That on service of the Summons of the suit, only defendant Nos.1 to 3 and defendant No.9 appeared through advocate and remaining defendants, inclusive of the appellants herein – original defendant Nos.6,7 and 10 remained absent and original defendant Nos.1 to 3 filed Written Statement at Ex.15 and original defendant No.9 filed Written Statement at Ex.13 along with counter claim. So far as the original defendant No.9 is concerned, it was her case that her family is and was in possession to property prior to the transaction of the mortgage and that she is statutory tenant and the plaintiff's forefather had given such place on rent to the family of the defendant No.9. Therefore, it was prayed by way of counterclaim that defendant No.9 be declared as tenant at the monthly rent of Rs.8/- per month and also prayed for permanent injunction restraining the plaintiff from disturbing the possession of the tenanted property.
2.06. The suit was resisted by the defendant Nos.1 to 3 by submitting that the suit is barred by law of limitation.
2.07. The learned trial court framed issues at Ex.35. Both the parties led evidence, documentary as well as oral.
2.08. On behalf of the plaintiff, plaintiff - Hansaben herself came to be examined at Ex.169 and on behalf of the defendants, defendant No.2 - Sevantilal came to be examined at Ex.282. On behalf of the defendant, Girishbhai Mukeshbhai came to be examined at Ex.327; Sunil Hemchand came to be examined at Ex.332; Hasmukh Himatlal came to be examined at Ex.335. Both the parties led documentary evidences also.
2.09. After institution of the suit, original defendant No.2 executed in favour of the plaintiff registered redemption of mortgage deed dtd.26/4/2001 and therefore, the learned trial court held that the Issue Nos.1 to 6 and 8 to 16 are not required to be decided and the issues are required to be decided only qua the reliefs against the defendant Nos.5 to 12.
2.10. As stated above, neither any written statement was filed by the defendant Nos.5 to 12 nor they contested the suit and then appear in the suit before the learned trial court. That on appreciation of evidence and as it was found that the defendant Nos.5 to 12 were inducted as tenant by the mortgagees after the property was mortgaged, the learned trial court decreed the suit and directed the defendant Nos.5 to 12 to handover the possession of the suit properties to the plaintiff by declaring that the defendant Nos.5 to 12 are tenants for the period of mortgage and they are not entitled to retain the possession of the suit properties after redemption of the mortgage.
2.11. Being aggrieved by and dissatisfied with the judgement and decree passed by the learned trial court in Regular Civil Suit No.1246 of 1984 dtd.9/7/2002, appellants herein along with original defendant Nos.5, 8, 9, 11 & 12 preferred Regular Civil Appeal No. 95 of 2002 before the District Court, Jamnagar and the learned Principal District Judge, Jamnagar, by the impugned Judgement and Order dtd.14/2/2012 has dismissed the said appeal confirming the judgement and decree passed by the learned trial court. Being aggrieved by and dissatisfied with the impugned Judgement and Orders / decrees passed by both the courts below, appellants herein – original defendant Nos.6,7 and 10 only have preferred present Second Appeal under section 100 of the Code of Civil Procedure.
3.00. Mr.Shah, learned advocate appearing on behalf of the appellants has vehemently submitted that both the courts below have materially erred in allowing the suit and directing the appellants herein to handover the vacant and peaceful possession of the suit properties to the plaintiff.
3.01. It is further submitted by Mr.Shah, learned advocate appearing on behalf of the appellants that in the suit for redemption of mortgage, when the appellants were claiming to be tenants of the suit properties for the period prior to the mortgage, the learned trial court has materially erred in passing decree and directing the appellants to handover the possession of the suit property to the plaintiff.
3.02. It is further submitted by Mr.Shah, learned advocate appearing on behalf of the appellants that under the mortgage deed, the lease was permissible and therefore, even on redemption of the mortgage, tenancy rights of the tenants who were inducted as tenants even during the period of mortgage period are protected / saved and therefore, the learned trial court has materially erred in directing the appellants to handover the possession of the suit property to the plaintiff.
3.03. It is further submitted by Mr.Shah, learned advocate appearing on behalf of the appellants that even the suit at the instance of the plaintiff was not maintainable as he was claiming as heir under the Will which has not been proved and even no probate was obtained by the plaintiff.
3.04. It is further submitted by Mr.Shah, learned advocate appearing on behalf of the appellants that as the appellants were tenants of the suit premises, Civil Court had no jurisdiction to pass decree for possession of the rented premises and therefore also the judgement and decree passed by the learned trial court confirmed by the learned appellate court deserves to be quashed and set aside.
3.05. It is further submitted by Mr.Shah, learned advocate appearing on behalf of the appellants that even Ex.279 cannot be said to be a mortgage deed. It is further submitted by Mr.Shah, learned advocate appearing on behalf of the appellants that even the learned appellate court has not framed the points of determination as required under Order 41 Rule 31 of the Code of Civil Procedure, while deciding and disposing of the appeal under section 96 of the Code of Civil Procedure and therefore also the impugned Judgement and Order passed by the learned appellate court deserves to be quashed and set aside.
3.6. Mr.Shah, learned advocate appearing on behalf of the appellants has heavily relied upon the decision of the Hon'ble Supreme Court in the case of Madan Lal Versus Badri Narain and others, reported in (1987) 3 S.C.C. 460, by submitting that as observed by the Hon'ble Supreme Court in the said decision, lessee is entitled to remain in possession even after redemption of the mortgage by the mortgagor in view of section 76(A) of the Transfer of Property Act. It is submitted that as such the aforesaid issue is required to be decided by the learned trial court. It is submitted that in the present case, courts below have not considered the provisions of section 76(A) of the Transfer of Property Act.
3.07. Mr.Shah, learned advocate appearing on behalf of the appellants has also relied upon the decision of the Hon'ble Supreme Court in the case of Puran Chand (D) through Lrs. & Ors. Versus Kirpal Singh (D) & Ors., reported in 2000 (8) Scale 463 in support of his prayer to admit / allow the present Second Appeal.
4.00. Heard Mr.Shah, learned advocate appearing on behalf of the appellants at length and considered and gone through the Judgement and Order passed by both the courts below and also the evidence oral as well as documentary from the record and proceedings which have been received from the court below.
5.00. At the outset, it is required to be noted that as such all the parties to the suit are not joined as party respondents in the present Second Appeal and only original plaintiff is joined as party respondent to the present appeal and the present appeal has been preferred by the original defendant Nos.6, 7 and 10 only and not by any other defendants inclusive of the original defendant Nos.5, 8, 11 and 12 against whom also possession decree has been passed by the learned trial court confirmed by the learned appellate court.
5.01. That the respondent herein – original plaintiff instituted suit against the against the original defendant Nos.1 to 4 for redemption of the mortgage and also to quash and set aside the sale deed executed by the father of the defendant Nos.1 to 3 in favour of the defendant No.4 with respect to the property bearing City Survey No.61 and also for recovery of possession from the defendant Nos.5 to 12 submitting that the defendant Nos.5 to 12 are the tenants after the mortgage and they were inducted as the tenants by mortgagee and without the consent of the mortgagor. It is also required to be noted that so far as the defendant Nos.5 to 12 - appellants herein are concerned, they never contested the suit. They even neither filed Written Statement nor appeared before the learned trial court and they never claimed before the learned trial court that they are tenants. They also never submitted any counter claim to declare that they are tenants of the suit property. That during the pendency of the suit, the original defendant Nos.1 to 3 – mortgagee redeemed the mortgage and executed registered redemption mortgage deed and executed reconveyance deed. Therefore, as such the learned trial court was not required to consider the prayer with respect to redemption of the mortgage and consequently the learned trial court did not decide the said issues.
5.02. On appreciation of evidence and considering the fact that the original defendant Nos.5 to 12 were inducted by the mortgagee during the mortgage period and after the property was mortgaged and without the consent of the mortgagor, the learned trial court has passed the decree for eviction of possession directing the defendant Nos.5 to 12 to handover the possession of the suit property to the plaintiff. Therefore, once it is held on appreciation of evidence that the original defendant Nos.5 to 12 were inducted as tenants by the mortgagee after the suit property was mortgage and when the decree for redemption of mortgage came to be passed and even in the present case the mortgagee redeemed the mortgagee by executing reconveyance deed / redemption of mortgage deed, defendant Nos.5 to 12 as tenants of the mortgagee, have no right to continue in the suit premises. Under the circumstances, as such the original defendant Nos.5 to 12 who were inducted as tenants by the mortgagee without the consent of the mortgagor, they cannot have better title than the mortgagee and therefore also once the mortgage is redeemed, tenants of the mortgagee are bound by the said decree and/or by the redemption of the mortgage and/or they are bound to handover the possession of the suit property / mortgaged property to the mortgagor. Under the circumstances, no illegality has been committed by both the courts below in directing the appellants to handover the possession of the mortgaged property / suit property to the plaintiff.
5.03. Now, the contention on behalf of the appellants that the suit filed by the plaintiff was not maintainable as the Will under which he was claiming right has not been proved is concerned, the same has no substance. As such nobody has challenged the Will under which the original plaintiff was claiming right and instituted the suit. It has come on record that the plaintiff is the only surviving heir of the original mortgagor and as such nobody has challenged his status and as stated hereinabove even no written statement was filed and the suit was not resisted by the appellants.
5.04. Now, so far as the reliance placed by the learned advocate appearing on behalf of the appellants in the case of Madan Lal (supra) as well as reliance placed upon section 76(A) of the Transfer of Property Act is concerned, first of all the decision of the Hon'ble Supreme Court in the case of Madan Lal (supra) would not be applicable to the facts of the present case. In the said case, the Hon'ble Supreme Court had not finally decided the issue whether tenants inducted by the mortgagee are entitled to remain in possession even after redemption of mortgage by the mortgagor. The Hon'ble Supreme Court in the aforesaid decision was considering the application under Order 39 Rule 1 of the Code of Civil Procedure and it is observed by the Hon'ble Supreme Court in the said decision that the aforesaid question is required to be determined by the learned trial court after framing necessary issue as to whether the alleged act falls within the purview of section 76(A) of the Transfer of Property Act or not. No final decision has been pronounced by the the Hon'ble Supreme Court in the said decision. As such the appellants have not even filed Written Statement and even not contested the suit and it was never the case on behalf of any of the defendants that the lease by the mortgagee in favour of the defendant Nos.5 to 12 was an act of prudent management within the purview of section 76(A) of the Transfer of Property Act. Even the decision of the Hon'ble Supreme Court in the case of Puran Chand (D) through Lrs. & Ors. (supra) relied upon by the learned advocate appearing on behalf of the appellants would not be of any assistance to the appellants as in the said decision the Hon'ble Supreme Court has considered decision of the Hon'ble Supreme Court in the case of Mahabir Gope and others Versus Harbans Narain Singh and others, reported in 1952 (3) SCR 775 in which the Hon'ble Supreme Court was considering the dispute with respect to tenancy/tenant inducted by the mortgagee with respect to agricultural land and the Hon'ble Supreme Court was considering the issue as to whether such a tenant is entitled to continue in possession despite redemption by proving (i) that the tenancy was created by the mortgagee as an act of prudent management and (ii) was such tenant is protected by the statute?
5.05. In the present case, as stated hereinabove, there was no such case pleaded by the defendants inclusive of the appellants herein. Under the circumstances, the aforesaid decision would not be of any assistance to the appellants.
5.06. Now, so far as the contention on behalf of the appellants that the learned trial court had no jurisdiction to pass a decree for recovery of the possession against the defendant Nos.5 to 12 as they are tenants is concerned, the same has no substance. It is required to be noted that the the original plaintiff instituted suit for redemption of the mortgage and for recovery of the possession, from the defendants who were inducted by the mortgagee and the plaintiff never accepted the defendant Nos.5 to 12 as tenants and never claimed possession from them as his tenants and/or tenants of the mortgagor. Under the circumstances, the contention on behalf of the appellants that the trial Court had no jurisdiction to pass decree for recovery of possession and to direct the appellants to handover the possession cannot be accepted.
5.07. Now so far as the contention on behalf of the appellants that the learned appellate court has not framed points for determination as required under Order 41 Rule 31 of the Code of Civil Procedure and therefore the impugned Judgement and Order passed by the learned appellate court deserves to be quashed and set aside is concerned, considering the Judgement and Order passed by the learned appellate court, it appears that as such the learned appellate court has considered all the points / issues and therefore, merely because points for determination are not framed, on that ground the impugned Judgement and Order passed by the learned appellate court is not required to be quashed and set aside. This view is supported by the decision of the Hon'ble Supreme Court in the case of G.Amalorpavam and others Versus respondent.C.Diocese of Madurai and others, reported in (2006) 3 SCC 224. the Hon'ble Supreme Court in para 9 of the said decision has observed and held as under :-
“9. The question whether in a particular case there has been a substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate Court is in a position to ascertain the findings of the lower appellate Court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient. Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though the point has not been framed by the appellate Court there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment
of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the Rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the Court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of Second Appeal conferred by Section 100 CPC.”
5.08. In view of the above and for the reasons stated above, no illegality has been committed by the learned trial court holding the appellants herein - original defendants original defendant Nos.5 to 12 as tenants inducted by the mortgagee during the mortgage period and consequently passing decree for eviction of possession directing the appellants – original defendant Nos.6, 7 and 10 to handover the possession of the mortgaged property to the plaintiff. As stated above, though the decree for recovery of possession has been passed against the defendant Nos.5 to 12, only appellants – original defendant Nos.6, 7 and 10, who even did not file Written Statement and did not contest the suit, have filed the present Second Appeal.
5.09. In view of the above and for the reasons stated above, there is no substance in the present Second Appeal and the same deserves to be dismissed and is accordingly dismissed.
In view of dismissal of the main Second Appeal, no order in the Civil Application No. 5264 of 2012 and the same also deserves to be dismissed and is accordingly dismissed. No costs.
rafik [M.R. SHAH, J.]