Karnataka High Court
Smt Rathnamma W/O Byadagi ... vs K Mukundappa S/O Ranganathappa on 30 July, 2012
1 RSA 2695/11
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 30TH DAY OF JULY, 2012
BEFORE:
THE HON'BLE MR. JUSTICE A.S.PACHHAPURE
REGULAR SECOND APPEAL No.2695 OF 2011
BETWEEN:
Rathnamma,
W/o. Byadagi Gangadharappa,
Since deceased by her L.R.
a) B. Kashinath Chowdhary,
S/o. Late Byadagi Gangadharappa,
Aged about 60 years,
R/o. Tilak Road, Sagar Town,
Shimoga District-577 401. ... APPELLANT/S
[By Sri. R.V. Jayaprakash, Adv.]
AND:
1. K. Mukundappa,
S/o. Ranganathappa,
Since deceased by his L.Rs.
a) Savithramma,
W/o Late K. Mukundappa,
Aged about 65 years,
b) Govinda,
S/o. Late K. Mukundappa,
Aged about 43 years,
c) Dattatreya,
S/o. Late K. Mukundappa,
Aged about 41 years,
2 RSA 2695/11
d) Suma K.,
D/o. Late K. Mukundappa,
Aged about 39 years,
e) Vani K.,
D/o. Late K. Mukundappa,
Aged about 37 years,
Respondents 1(a) to 1(e) are
R/o. Jaibharathi Rice & Flour Mills,
Hosapete Hakkalu, Soraba Town,
Shimoga District-577 429.
2. Savitramma,
W/o. Late K. Ranaganathappa,
Since deceased by her L.R.
a) Radhamma,
W/o. Late Hanumanthappa Khatavkar,
Aged about 65 years,
R/o. 3rd Cross, Jayanagara,
Shikaripur Town,
Shimoga District-577 427.
3. Shreedhara Gupta,
S/o. Late Seshappa,
Aged about 66 years,
Nagareshwara Traders,
Tilak Road, Sagar Town,
Shimoga District-577 401.
4. Mohan Shet,
S/o. Keshav Shet,
Aged about 55 years,
R/o. Navarathna Jewellers,
Tilak Road, Sagar Town,
Shimoga District-577 401.
5. Kashinath,
S/o. Keshav Shet,
Aged about 60 years,
Goldsmith,
Tilak Road, Sagar Town,
Shimoga District-577 401. ... RESPONDENT/S
[By Sri. Harish Kumar. M.S., Adv. for C/R1(a-c)]
3 RSA 2695/11
This RSA is filed u/Section 100 of CPC., against
the Judgment and Decree dated 18.8.2011 passed in R.A.
No.45/2007 on the file of the Senior Civil Judge & JMFC.,
Sagar, dismissing the appeal and confirming the Judgment
and Decree dated 14.6.1993 passed in O.S. No.28/1986 on
the file of the Prl. Munsiff Court, Sagara.
This RSA having been heard and reserved for
Judgment, this day the Court pronounced the following:
JUDGMENT
The appellant has challenged the Judgment and Decree of redemption of mortgage and possession, passed by the trial Court, confirmed in the appeal by the first appellate Court.
2. The facts relevant for the purpose of this appeal are as under:
The parties are referred to as they were referred in the original proceedings, for the sake of convenience.
The appellant herein is the legal representative of the 1st defendant before the trial Court, whereas deceased respondent Nos.1 and 2 are the plaintiffs and respondent Nos.3 to 5 are defendant Nos.2 to 4 respectively in the suit. The suit schedule house property is municipal kaneshumari No.611 with the present municipal assessment No.221 and present kaneshumari 4 RSA 2695/11 No.857 described in the schedule to the plaint. The 1st plaintiff and his father-K.Ranganathappa had borrowed a sum of Rs.4,000-00 from the 1st defendant on 05.09.1955 on the security of the suit property and executed a registered Mortgage Deed. In the partition, the suit property fell to the share of the 1st plaintiff and his father. On 04.07.1960, an amount of Rs.1,933-00 became due towards the interest of the Mortgage Deed dated 05.09.1955. Therefore, the 1st plaintiff and his father borrowed another sum of Rs.5,067-00 and executed another registered Mortgage Deed dated 04.07.1960. In the settlement of accounts between the parties on 10.06.1967, the plaintiffs were to pay a sum of Rs.10,000-00 to the 1st defendant as the mortgage amount. A sum of Rs.1,000-00 was paid and a receipt was obtained. On 29.06.1967, the plaintiff's father paid another sum of Rs.1,600-00 to the sons of the 1st defendant towards repayment of the mortgage debt and obtained a receipt.
On 20.07.1967, another sum of Rs.900-00 was paid. Thus in all, a sum of Rs.3,500-00 was paid by the plaintiffs to the defendant towards the mortgage debt. 5 RSA 2695/11
The plaintiffs claim that the 1st defendant is to continue in occupation of the suit property as tenant on monthly rent of Rs.70-00 and the rent accrued is to be adjusted towards the interest and the principal of the mortgage loan of Rs.7,000-00. As on 08.02.1977, a sum of Rs.12,775-00 was found to be due inclusive of the interest. Therefore, the plaintiffs claim that adjusting a sum of Rs.8,052-00 towards the loan, only a sum of Rs.4,725-00 was payable. Therefore, the 1st plaintiff issued a notice dated 08.02.1977 calling upon the 1st defendant to receive the balance of Rs.4,725-00 and to redeem the mortgage, deliver the possession to the plaintiffs. The 1st defendant gave a reply dated 19.02.1977 denying the fact that he was the tenant of the suit property.
The 1st plaintiff approached the Court in H.R.C. No.3/1984 for eviction and the Court dismissed the petition as the plaintiffs failed to establish the relationship of landlord and tenant amongst them. In the circumstances, the plaintiffs claim that they are entitled to possession of the suit property after adjusting the rent towards the mortgage debt. Therefore, claiming that the 1st defendant is in possession of the 6 RSA 2695/11 suit property as a mortgagee, under the Deeds dated 05.09.1955 and 04.07.1960 and a sum of Rs.6,235-00, payable to the 1st defendant after adjusting the rent towards the mortgage debt instituted the suit for redemption of the mortgage and delivery of the vacant possession of the suit property to the plaintiffs. The other defendants are said to be the tenants in occupation of the portion of the suit premises .
The 1st defendant filed a written statement denying the allegations made and claiming that the husband of the 1st defendant was the tenant of the suit property since from 03.06.1945 on a rental of Rs.12-00 p.m. and it is also the contention that the calculation made in respect of the due amount is not proper. She admits the mortgage transaction dated 05.09.1955 and 04.07.1960 and also the averment that she came in possession of the suit property as a tenant. She disputed the rental of the premises. It is also her contention that the suit is barred by time and necessary parties are not impleaded as the defendants in the suit. It is also her contention that she has incurred huge amount for improvement of the building and that she has protection of possession under the provisions of Section 21 of the Karnataka Rent Control 7 RSA 2695/11 Act, 1961 [hereinafter referred to as "the K.R.C. Act"
for short]. On these grounds, she has sought for dismissal of the suit.
The 4th defendant has filed a written statement disputing the amount of rent and denying the averments made in the plaint.
On the basis of these pleadings, the trial Court framed the issues and the 1st plaintiff was examined as P.W.1 and a witness P.W.2 and in their evidence, documents Exs.P1 to 15 were got marked. The 1st defendant was examined as D.W.1 and no documents were marked in her evidence. The trial Court after hearing learned counsel for the parties and on appreciation of the material on record, decreed the suit. Aggrieved by the Judgment and Decree, the legal representative of the deceased defendant No.1, defendant Nos.3 and 4 filed R.A. No.45/2007 and the said appeal came to be dismissed vide Judgment and Decree dated 18.08.2011. Aggrieved by the concurrent findings of the Courts below, the present appeal has been filed by the legal representative of the deceased 1st defendant.8 RSA 2695/11
3. This Court while admitting the appeal on 05.07.2012 has raised the following substantial questions of law for consideration:
1) Whether the Courts below committed an error in holding that the tenancy rights merged with the mortgage?
2) Whether the transactions between the parties are in the nature of mortgages with possession?
This Court on 24.07.2012 raised the following additional substantial question of law for consideration:
When the existence of the tenancy right between the parties was once decided in H.R.C. No.3/1984, whether the parties could further plead and request for a finding in the subsequent suit?
4. I have heard learned counsel for the parties.
5. Learned counsel for the appellant would contend that in the plaint there is a specific averment that the suit property was initially leased and subsequently mortgaged to the deceased 1st defendant and in such circumstances, he contends that the Courts below were 9 RSA 2695/11 erred in overlooking these pleadings. It is also in his submission that after redemption of the mortgage, the tenancy rights would revive and therefore, a decree for possession cannot be granted in the suit instituted. He also submits that the tenancy rights would not merge in mortgage and hence claims that the decree of eviction is both erroneous and illegal. He would further contend that the two Deeds of Mortgage produced by the plaintiffs at Exs.P3 and 4 are simple mortgages and hence he contends that the plaintiffs are not entitled to possession of the suit property as he is not a mortgagee in possession. He would further contend that as the tenancy rights revived on redemption of equity, the only way left open to the plaintiffs was to institute a petition for eviction under the Karnataka Rent Act.
Hence, he submits that the plaintiffs to overcome another round of litigation have wrongly chosen a forum to get the possession making a claim that there is a mortgage with possession and therefore, the suit for redemption could have been dismissed on this count only. Placing reliance on the decisions, which will be hereinafter referred to, the learned counsel submits to set aside the decree of eviction.
10 RSA 2695/11
Per contra, learned counsel for respondent No.1 [legal representative of deceased plaintiff No.1] would submit that the defendants cannot raise a contention that there is a relationship of landlord and tenant between the parties as the Rent Control Court in H.R.C. No.3/1984 between the parties has held that there is no such relationship. He also contend that from the defence raised by the appellant and other circumstances which have been placed on record, the only inference to be drawn is that there is a mortgage with possession and the Courts below have rightly granted such a decree. Hence, he claims that when the appellant once denied the existence of the relationship of landlord and tenant between the parties, now cannot contend the subsistence of such relationship and drag the respondents to another round of litigation. He would contend that the only relationship between the parties was that of a mortgager and mortgagee and the Courts below were justified in granting a decree of redemption with possession.
6. It is no doubt true that in the plaint there is a specific averment that after the first transaction of mortgage, the 1st defendant continued in occupation of the suit property as a tenant by paying a monthly rental 11 RSA 2695/11 of Rs.70-00 and that this rent was to be adjusted towards the interest on the mortgage loan of Rs.7,000-00. But, this assertion, made by the plaintiff has been denied by the 1st defendant in para 9 of the written statement, but anyhow, it is claimed by the 1st defendant that as the plaintiffs have pleaded the existence of relationship between the parties as landlord and tenant, the counsel contends that the possession of the 1st defendant is protected under Section 21 of the Karnataka Rent Act. On this aspect of the matter, it is relevant to refer to the notice Ex.P13 dated 08.02.1977 issued by the 1st defendant, wherein it is specifically averred that at the time of the second mortgage, it was agreed that the 1st defendant is to continue to be in occupation of the schedule house at an agreed rent of Rs.70-00 p.m. In fact, in this notice, the 1st plaintiff has referred to both the mortgage transactions and also the relationship of landlord and tenant. Ex.P14 is the reply notice dated 19.02.1977, wherein in para 5 of the said notice, the 1st defendant has stated "it is absolutely false and baseless to say that my client has taken the said house on lease from your client and that the rent agreed was Rs.70-00 p.m. and that my client is liable to pay the same to your 12 RSA 2695/11 client". He also states that there is no relationship of landlord and tenant between the parties and the 1st defendant is not liable to pay any rent to the 1st plaintiff.
7. Exs.P13 and 14-notice and the reply respectively are the first and foremost correspondence between the parties of their relationship and the 1st plaintiff pleaded that there is a relationship of landlord and tenant between the parties apart from the mortgage transactions, whereas the 1st defendant denied the relationship of landlord and tenant, whereas admitted the two mortgage transactions between the parties.
8. After receipt of the reply notice-Ex.P14, the plaintiffs kept quite for long time and the 1st plaintiff under the provisions of the Karnataka Debt Relief Act, 1979 submitted an application to the Taluk Executive Magistrate in case No.DTR/CR/1/82-83 stating that there are two mortgage transactions between himself and the 1st defendant and sought for discharge of debt and redemption of mortgage with possession. This application filed by the 1st plaintiff was disposed of vide Order dated 27.06.1983 produced at Ex.P11. Though the Taluk 13 RSA 2695/11 Executive Magistrate held that there is a relationship of debtor and creditor between the parties, as the income of the applicant [1st plaintiff] was more than the prescribed limit, the application came to be rejected. It is in these circumstances, for the first time, the 1st plaintiff filed H.R.C. No.3/1984 in the Court of the Principal Munsiff at Sagar, seeking eviction of the 1st defendant on the grounds under Section 21(1)(a), (f) and
(h) of the K.R.C. Act. The 1st defendant appeared in the said petition and disputed the relationship of landlord and tenant between the parties and took up a contention that she is a mortgagee in possession of the petition premises. The Court recorded the evidence of P.W.1 and documents Exs.P1 to 5 were got marked. Ex.R1-certified copy of the Order of the Assistant Commissioner was got marked on behalf of the other side and on appreciation of the material on record, the Court held that there is no relationship of landlord and tenant between the parties and hence rejected the petition filed by the 1st plaintiff and the copy of the Judgment and Decree has been produced by the plaintiff at Ex.P12. None of the parties have challenged the Judgment and Decree in H.R.C. No.3/1984 at Ex.P12 and the finding therein has attained 14 RSA 2695/11 finality. The H.R.C. petition referred to supra was disposed of on 19.08.1985. The perusal of the Judgment and Decree in H.R.C. No.3/1984 would clearly reveal that the 1st plaintiff had made an averment that he is the landlord and the 1st defendant is the tenant. This relationship was disputed, the Court framed a point for consideration regarding existence of the relationship and on appreciation of the material on record, the petition came to be rejected holding that there is no relationship of landlord and tenant between the parties.
9. If the facts stated supra are observed meticulously, it would reveal that the plaintiffs though took up a contention that there is a relationship of landlord and tenant between the parties, the 1st defendant denied the said relationship and in the H.R.C. petition filed by the 1st plaintiff, a finding was arrived at holding that there is no such relationship between the parties. But, anyhow, despite this finding in H.R.C. No.3/1984, the plaintiffs instituted the recent suit on 27.01.1986, seeking the redemption of the mortgage. Again he averred in the plaint that the 1st defendant is the tenant and this averment was denied by the 1st defendant in the written statement. Referring to 15 RSA 2695/11 the aforesaid pleading, learned counsel submits that the mortgages are simple Mortgage Deeds and as there are pleadings in the plaint that there is a relationship of landlord and tenant between the parties, the only way left open for the plaintiffs was to file a petition for eviction under the Karnataka Rent Act and to avoid one more round of litigation, the plaintiffs cannot seek possession of the suit property on the basis of the claim made in the suit. On this aspect of the matter, he placed reliance on the decision of the Apex Court reported in 2009 AIR SCW 287 [Bachhaj Nahar Vs. Nilima Mandal & Ors.]; wherein the Apex Court held as under:
"The High Court in its obvious zeal to cut delay and hardship that may ensue by relegating the plaintiffs to one more round of litigation, has rendered a judgment which violates several fundamental rules of civil procedure and that such a thing cannot be permitted."
Furthermore, he also relied on a decision reported in AIR 1953 Sup. Court 235 [Messrs. Trojan & Co., Vs. RM.N.N.Nagappa Chettiar]; wherein the Apex Court in para 22 has observed as under:
16 RSA 2695/11
"It is a well settled that the
decision of a case cannot be based on
grounds outside the pleadings of the
parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the Court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case."
So, basing his claim on the decisions referred to above, learned counsel would contend that the plaintiffs in the plaint averred the existence relationship as landlord and tenant, they cannot seek possession of the property under the guise of usufructuary mortgage and that the tenancy rights would revive soon after the simple mortgage transactions are redeemed.
10. It is his further submission that there is no question of merger of tenancy rights into equity of mortgage. On this aspect of the matter, learned counsel has placed reliance on the decision of the Apex Court reported in AIR (1984)4 Supreme Court Cases 382 [Gambangi Applaswamy Naidu and others Vs. Behara Venkataramanayya Patro and others]; wherein it has been held by the Apex Court as under:
17 RSA 2695/11
"For a merger to arise, it is necessary that lesser estate and a higher estate should merge in one person at one and the same time and in the same right and no interest in the property should remain outstanding. Accordingly, there cannot be a merger of a lease and a mortgage in respect of the same property since neither of them is a higher or lesser estate than the other. Even if the rights of the lessee and the rights of the mortgagee in respect of a property were to be united in one person the reversion in regard to the lease and the equity of redemption in regard to the mortgage, would be outstanding in the owner of the property and accordingly, there would not be a complete fusion of all the rights of ownership in one person."
He also placed reliance on the decisions of the Apex Court reported in (1) AIR 1991 Supreme Court 2046 [Nemi Chand Vs. Onkar Lal], (2) AIR (2001)5 Supreme Court Cases 51 [Nirmal Chandra Vs. Vimal Chand] and (3) AIR (1976)3 Supreme Court Cases 660 [Shah Mathuradas Maganlal & Co. Vs. Nagappa Shankarappa Malage and Others]; wherein the 18 RSA 2695/11 Apex Court reiterated the same principle referred to supra.
11. In the light of the principles laid-down in the decisions referred to supra, if the pleadings are perused, the plaintiffs in para 5 of the plaint state that the 1st defendant continued to be in occupation of the schedule property as a tenant paying monthly rent of Rs.70-00 and it was agreed that the rent is to be adjusted towards the mortgage debt. This pleading is denied by the 1st defendant in the written statement. It is relevant to refer here that the issue relating to the relationship of landlord and tenant between the parties, was decided by the Rent Control Court in H.R.C. No.3/1984 and the certified copy of the Judgment and Decree between the parties have been produced at Ex.P12 and the Court has considered the same set of pleadings between the parties and on appreciation of the material placed on record, decided the issue through Judgment and Decree dated 19.08.1985 and held that there is no relationship of landlord and tenant between the parties. The property is same and so also the parties and the facts were also the same and in fact the H.R.C. petition was instituted in the year 1984 i.e., after the notice-Ex.P13 dated 19 RSA 2695/11 08.02.1977 and the reply notice-Ex.P14 dated 19.02.1977 and also after Order of the Taluk Executive Magistrate, rejecting the application of the 1st plaintiff for discharge of the debt on redemption of the mortgage in DTR.CR.1/82-83 vide Order dated 27.06.1983. Neither the plaintiffs nor the 1st defendant can re-open this issue subsequent to the decision in H.R.C. No.3/1984 in another suit before a Competent Court on the basis of the same pleadings. When an issue is finally decided by a Court of competent jurisdiction, the res comes to an end and the parties again cannot go before a Court to re-open the issue and take another decision except by way of an appeal or revision against the finding rendered in H.R.C. No.3/1984. Therefore, the principles laid-down by the Apex Court in the decision reported in 2009 AIR SCW 287 [Bachhaj Nahar Vs. Nilima Mandal & Ors.] referred to supra is not applicable. When the 1st plaintiff cannot re-open the issue of the relationship of landlord and tenant between the parties, in view of the Judgment at Ex.P12, the question of tenancy rights between the parties also cannot be re-opened. When the finding in H.R.C. No.3/1984 accepted by the parties and when they did not challenge the said finding, they cannot again 20 RSA 2695/11 plead the relationship as landlord and tenant. Therefore, either the trial Court or the first appellate Court would not have considered the question of merger of tenancy rights with the mortgage rights as there were such rights amongst the parties in view of the decision in H.R.C. No.3/1984. In the result, both the Courts below could not have taken into consideration again the relationship of landlord and tenant between the parties and in the absence of such relationship, the Courts below could have considered the subsequent question in relation to redemption of the mortgage and the possession sought for by the plaintiffs. Though learned counsel has relied upon many decisions referred to supra on the question regarding merger of the mortgage rights and tenancy rights, they do not apply to the facts of this case solely because there are no tenancy rights between the parties and this fact has been endorsed by the Judgment of the Rent Control Act in H.R.C. No.3/1984.
12. When once the conclusion is arrived at that there is no relationship of landlord and tenant between the parties, what remains is the two simple Mortgage Deeds-Exs.P3 and 4 dated 05.09.1955 and 04.07.1960. The perusal of Mortgage Deeds Exs.P3 and 4 does not reveal 21 RSA 2695/11 any recital that the possession of the suit property was given to the 1st defendant under these mortgage transactions. They are simple mortgages. But, anyhow, as could be seen from Ex.P14-reply notice of the 1st defendant to the notice issued by the 1st plaintiff under Ex.P13, a portion in the last para reads "please note that my client is badly in need of her money, as such please advise him to make payment of the entire amount with up-to-date interest to my client and get the mortgage released without further delay". Further, in another portion of the notice reads "it appears that they had allowed my client's husband to continue in possession of the said house until they discharge their dues to him". So, as could be seen from the reading of the reply and the admission made by the 1st defendant, she has been in possession of the suit property and she would continue in possession till the mortgage debt is discharged. Thereby, the circumstances referred to supra in the context of the fact that there exists no relationship as landlord and tenant between the parties, it could be held that though Exs.P3 and 4 are simple mortgages, defendant No.1 is in possession of the suit property and she has such a right to continue in possession till the discharge 22 RSA 2695/11 of mortgage debt under Exs.P3 and 4. Though from the mortgage transactions at Exs.P3 and 4 the possession was not handed over to the 1st defendant and though the deeds are not usufructuary mortgages when the title of the plaintiffs to the suit property is not disputed, there is no impediment to grant a decree in favour of the plaintiffs for redemption of the mortgage and possession.
13. Learned counsel for the appellant relied upon the decision of the Apex Court reported in (2007)8 Supreme Court Cases 600 [Shiv Kumar Sharma Vs. Santosh Kumari], wherein the Apex Court in para 28 has said "Grant of such a relief in the teeth of express provisions of the statute to the contrary is not permissible. On equitable considerations court cannot ignore or overlook the provisions of the statute. Equity must yield to law". On the basis of this principle laid down by the Apex Court, the counsel would contend that there are simple mortgages and possession of the 1st defendant was not under the said mortgages, a suit for redemption of the mortgage and possession cannot be maintained.
23 RSA 2695/11
14. From the submission made by learned counsel, it could be said that so far as the mortgage transactions-Exs.P3 and 4 are concerned, the plaintiffs can redeem the said mortgages. But, so far as getting possession is concerned, he contends that the forum adopted by the plaintiffs to seek possession by redemption of the mortgage would defeat the expressed provisions of the law and therefore, he claims that the decrees granted by the Courts below are illegal. In this context, it is necessary to refer to the relevant portion of the prayer in the plaint which reads;
"The plaintiffs pray for a decree:
(a) directing the redemption of the suit schedule property and the 1st defendant's receiving an amount of Rs.6,235-00 from the plaintiff and directing the 1st defendant to re-transfer the schedule property and deliver vacant possession of the suit property to the plaintiff." [emphasis supplied by me] So, from reading of clause (a) in the prayer column of the plaint, there are two prayers. One is redemption of the mortgage and the other is delivery of vacant 24 RSA 2695/11 possession. So, if these two prayers in the plaint are to be taken into consideration, it could be said that so far as Exs.P3 and 4 simple mortgages are concerned, part of the first prayer covers the relief i.e., redemption of mortgage. The other part i.e., delivery of vacant possession of the suit property could be granted to the 1st plaintiff in the present suit itself as he has prayed for delivery of vacant possession of the suit property and the title of the plaintiffs to the suit property is not disputed. So, when the 1st defendant is neither a tenant, nor a mortgagee in possession and do not have any other right to continue in possession of the suit property, there appears to be no reasons to refuse the relief of vacant possession of the suit property and that has been done so by the Courts below by granting the relief of redemption of the mortgage and a decree of possession would not be against any statute and therefore, the decision referred to supra cannot be applied.
15. Furthermore, the 1st defendant has claimed a right to possession of the suit property only on two counts. The one is the tenancy rights and the other is under the rights of mortgagee. He has not taken any 25 RSA 2695/11 other defence and as discussed above, when there is no tenancy between the parties, merely because that the plaintiffs pleaded tenancy again in the present pleadings, the 1st defendant cannot say that the tenancy rights revive after redemption of the mortgage. The defendants cannot blow hot and cold and the principle of estoppel applies to the 1st defendant and on this aspect, learned counsel for the 1st respondent has placed reliance on the decision of the Apex Court reported in 2010(10) Supreme Court Cases 422 [Mumbai International Airport Private Limited Vs. Golden Chariot Airport and another], wherein the Apex Court in the similar circumstances, where the parties took inconsistent stand and prolonged the proceedings for more than a decade, held "Maxims - Qui approbat non reprobat - Approbate and reprobate would be applicable". In this context, the Apex Court granted exemplary costs of Rs.5 lakhs against the respondent. But, anyhow, so far as these inexistent plea is concerned, it is relevant to refer here that on one hand, the plaintiffs having initially pleaded about the tenancy and having obtained a decree in H.R.C. No.3/1984, unnecessarily pleaded tenancy even in the present suit. This is also a mistake committed by the 26 RSA 2695/11 plaintiffs and the averment in the pleadings by both the parties after a decision in H.R.C. No.3/1984 was improper. It is because of this improper pleading of the plaintiffs that the 1st defendant has taken the disadvantage and took inconsistent stand. As the fault lies with both the parties, I do not think it proper to grant any compensation to the respondents. As there are no tenancy rights between the parties, I answer the substantial questions of law No.1 regarding merger of the tenancy rights with the mortgage rights do not arise for consideration, No.2 in affirmative and the additional substantial question of law in negative.
In the result, the appeal fails and it is
dismissed with costs.
Sd/-
JUDGE.
Ksm*