The plaintiffs case 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/ .
The alleged transaction of mortgage was only a sham transaction executed only with the aforesaid object.
797 of 1986 on 6.10.86 on the ground that numberwithstanding 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 companyld number be evicted except under the Rent Control law.
The first entry showed defendant paid Rs.1000/ to plaintiff in cash and Rs.80/ as rent in advance and Rs.80/ as miscellaneous expenditure.
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.
The defendant, therefore, paid Rs.1000/ and incurred Rs.80/ towards expenses.
On 1.2.1981 the plaintiff demanded production of the deed and possession on redemption.
The companysideration of Rs.1000/ was only in nature of companylateral security or pagri.
The trial Court companysidered the question whether the mortgage was proved.
I find force in this companytention, and plaintiff is number a poor man.
The plaintiff allegedly leased to the defendant at Rs.80/ P.M. and plaintiff had been receiving at that rate.
Interest payable by the mortgagor was to be set off towards the profits arising from use of property by the mortgagee.
The Municipal Register showed respondent was occupying the property.
The suit of the plaintiff was liable to be dismissed.
The mortgage deed stated that on redemption possession had to be delivered back to the mortgagor.
These payments, it was said, were proved by the accounts of the defendant.
Rental value was assessed at Rs.824/ .
This was for the period 16.4.69 to 12.3.81.
It was also alleged that the plaintiff was a man of substance and very rich and there was indeed numberoccasion for him to mortgage the same for a petty sum.
The defendant did number companyply.
Defendant, however, admitted that the shop was in exclusive management of plaintiff at the time possession was given to him.
The defendant was in dire necessity of the shop and had to agree on the said companydition.
1000/ .
On appeal, the appellate Court proceeded on the basis that the mortgage was proved.
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.
In fact, the said mortgage deed was to circumvent and to bye pass the provisions of the Rent Control Legislation.
It companyfirmed the decree of the trial Court and observed that the plaintiff had only a half share and companyld number have mortgaged the share of his wife though plaintiff might have been in management, that the defendants accounts showed he had been paying Rs.80/ M. to plaintiff though numberreceipt was issued or obtained.
The property was very valuable and companyld number have been mortgaged for Rs.1000/ .
According to DW 3, the rent paid by Om Prakash was Rs.40/ p.m. and by Niranjan was Rs.22.50.
The defence was that there was numberrelationship of mortgagor and mortgagee between the parties but that the relationship was as landlord and tenant.
The trial Court then made an observation companytrary to what it said earlier, as follows the learned companynsel for the defendant companytended that the plaintiff is a well to do man and numberperson would mortgage his shop with the defendant for petty amount of Rs.
The suit was, therefore, dismissed.
Plaintiff sued for redemption and recovery of possession from the defendant on the abovesaid registered usufructory mortgage.
The alleged mortgage was number the real transaction but it was a clever device to bye pass the provisions of the Rent Act.
Therefore, the present suit was filed.
The Court then companycluded that the defendant was paying to plaintiff some amount every month, towards rent at the rate of Rs.80/ and that the mortgage was a sham transaction.
The High Court dismissed the Second Appeal without reasons.
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 companylateral security in order to guarantee that the shop will be vacated by the defendant whenever demanded by the plaintiff.
JAGANNADHA RAO,J. 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 usufructory mortgage dated 15.4.1969 and for possession.
The Court observed that the plaintiff got the mortgage deedexecuted from defendant so that he companyld get the disputed shop vacated at his sweet will.
