LexISHWAR DASS JAIN (DEAD) THROUGH L.RS. versus SOHAN LAL (DEAD) BY L.RS.
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A B ISHWAR DASS JAIN (DEAD) THROUGH L.Rs. v. SOHAN LAL (DEAD) BY L.Rs. NOVEMBER, 29 1999 [M. JAGANNADHA RAO AND M.B. StIAH, JJ.] Civil Procedure Code, 1908-Sec. JOO-Suit for redemption by mortgagor-Claim of mortgagee that mortgage was a sham document to by- pass tenancy laws-Mortgagee, claiming to be a tenant paying rent- C Mortgagee also questioning title of the mortgagor-Suit dismissed by Trial Court-Findings of Trial Court confirmed in first appeal-Second Appeal dismissed in limine---Without considering vital material-Held, transaction is one of Mortgage-Suit decreed for redemption-Transfer of Property Act, 1882. D Civil Procedure Code, 1908-Section 100-Second Appeal-Findings of fact of trial court-When can be interfered with-discussed ;: Transfer of Property Act 1882-Proof of execution of mortgage- Execution not denied by mortgagee-Held, non-Examination of attestors E cannot be fatal to the mortgagor-Evidence Act. Usufructuary mortgagee-Held, cannot question the title of mortgagor nor can set up plea of adverse possession unless he re-enters with a different status-Transfer of Property Act, 1882. F Civil Procedure Code, 1908-105, 115-0bjection as to admissibility of accounts rejected by Trial Court-Revision rejected on grounds that it was not a 'case decided'-Whether the objection as to admissibility can be taken up in first appeal from the final Judgment-Beld, yes. Account Books-Extracts from pri.vate entries-Without production of G original account books-Held, no sanctity can be attached to them and it cannot be relied upon-Evidence Act. H The Original Plaintiff, who was the mortgagor of the suit property, filed a suit for redemption of usufructory mortgage and for possession against the ·· Defendant The Plaintiff contended that he mortgaged the entire suit property 24 .. &. I l.D. JAIN v. SOHAN LAL 25 / • viz. a shop and his 5/6th share therein for a sum of Rs. 1000 under a A registered mortgage, that the interest payable was to be set off towards the profits arising from use of the property by the mortgagee and that when the plaintiff demanded production of the deed and possession on redemption the - mortgagee failed to give possession. The original defendant contended that there was no relationship of mortgagor and mortgagee between the parties B but it was one of landlord and tenant, that the shop was in the exclusive management of Plaintiff at the time of possession, that a monthly rent of Rs. 80 was being paid by defendant, that the mortgage deed was executed by way of collateral security in order to guarantee possession on demand and to bye- pass the provisions of Rent Control Regulation and that it was a sham transaction which was never intended to be acted upon. The defendant also c contended that the Plaintiff was a man of means and it was not necessary for him to mortgage the shop for a petty sum. The trial Court dismissed the suit and held that though the Defendants executed a registered mortgage, the real relationship between the parties was that of landlord and tenant and that the Defendant could not be evicted except D under the Rent Control Law. The Trial Court relied upon certain accounts produced by the Defendant to hold that the Defendant was paying various amounts to Plaintiff towards rent and that the mortgage was a sham transaction. - On the first appeal the appellate Court confirmed the order of dismissal E of the Trial Court and held that the plaintiff had only a half share and could not have mortgaged the share of his wife though he was in management. The appellate Court held that the valuable property could not have been mortgaged for a petty sum of Rs. 1,000, while the rental value as per municipal records was assessed at Rs. 824 and the name of Defendant was shown as occupier F and held that the mortgage was a sham document and that the Defendant was in reality a tenant. The Second Appeal was dismissed by the High Court in limine without reasons. Allowing the appeal by the Plaintiff, the Court HELD : 1. It is essential for the High Court to formulate a substantial G question of law and it is not permissible to reverse the Judgment of the first appellate Court without doing sq. There are two situations when the High Court can interfere under Section 100 CPC with the findings of fact arrived at by the lower appellate Court. The first one is when material or relevant ...... evidence is not considered which, if c
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