JUDGMENT
J.S. Khehar, J.
1. Nand Singh and Dr. Thakar Singh filed a suit for recovery of possession of shop-cum-vacant site and ahata situated in the Main Bazar of Moga town, against 14 defendants. Besides claiming possession of the suit land, the plaintiffs also sought recovery of a sum of Rs. 84007- from the defendants on account of damages. Besides the aforesaid damages, the plaintiffs claimed a further sum of Rs. 500/- as damages from defendant Nos.l and 2. The suit property was fully described in the site plan attached to the plaint. The sequence of facts narrated in the pleadings as well as the evidence read out during the course of arguments reveal that the plaintiffs had mortgaged the suit property to Suba Singh and Saudagar Singh, defendant Nos.l and 2, for sum of Rs. 26,000/-, vide registered mortgage deed dated 9.3.1942. After taking an additional amount of Rs. 3000/- from the aforesaid Suba Singh and Sauda- gar Singh, the plaintiffs executed an additional registered mortgage deed dated 3.3.1943.
2. On 25.8.1969, the plaintiffs redeemed the mortgaged property by depositing a sum of Rs. 29,000/-. The factum of redemption of the mortgaged property by the plaintiffs Nand Singh and Dr. Thakar Singh was not disputed by respondent Nos.l and 2.
3. The cause of action for filing the suit, out of which the instant appeal has arisen, arose on account of the fact that physical possession of the suit property was not handed over to the plaintiffs even after the redemption of the mortgaged property. Defendant Nos.l and 2 i.e. Suba Singh and Saudagar Singh, are stated to have rented out portions of the suit, property to defendant Nos.3 to 14. The mortgagees Suba Singh and Saudagar Singh are stated to have been receiving rent from them during the subsistence of the mortgage and even thereafter. In the pleadings, defendant Nos.3 to 14 were described as tenants of the ex-mortgagees. Since the defendants failed to deliver possession of the suit property, the plaintiffs filed the instant suit for possession and recovery of damages.
4. Plaintiff No. 1, Nand Singh, died during the pendency of the suit. His legal representatives were impleaded as plaintiffs Nos.l-A to 1-F. Likewise, defendant No. 10, Durga Dass, died during the pendency of the suit. He was substituted by his legal heirs; who were impleaded as defendant Nos.l0-A to 10-C.
5. Consequent upon the issuance of notice to the defendants, written statements were filed by defendant Nos.land 2 and defendant No. 4 filed one common joint written statement; whereas defendant No. 3 and 5 to 12 filed a separate joint written statement. In the written statements filed by the defendants a large number of technical pleas were raised. Defendant Nos.l and 2 acknowledged the fact that the mortgaged property had been redeemed by the plaintiffs on 25.8.1969 by depositing a sum of Rs. 29,000/-. The claim of the plaintiffs for possession of the suit property was, however, contested by asserting (in response to the averments made in para 5 of the plaint), that the suit property was under tenants prior to the execution of the mortgage by the plaintiffs with defendant Nos.l and 2. It was categorically asserted that the mortgagees i.e., defendant Nos.l and 2 had not inducted any new tenant. So far as defendant No. 4, Ganga Ram is concerned, it was also asserted that he had been inducted as tenant by the plaintiffs before the exe- cution of the mortgage. In the joint written statement filed on behalf of the respondent Nos.3 and 5 to 12 the stance adopted was that defendant No. 3, Amar Nath Verma, de- fendant No. 7, M/s Sohan Singh Gurdyal Singh, Cloth Merchants, were in possession of separate shops. Defendant No. 10, Durga Dass, inherited the rights of Amar Nath and Ganga Ram. Even defendant No. 10, Durga Dass, was stated to be in possession of a separate portion as a tenant of the plaintiffs prior to the execution of the mortgage. De- fendant No. 5, M/s Inder Singh Jagir Singh, is also stated to be in possession of a shop leased out to the said defendant by Telu Ram son of Nathu Ram. It is sought to be ex- plained, that Telu Ram son of Nathu Ram was a mortgagee with possession of the suit property before the execution of the mortgage deed dated 99.3.1942. It is also averred that the plaintiffs had permitted Telu Ram son of Nathu Ram to lease out the premises. Defendant No. 3, Amar Nath Verma, claims to have been in occupation of a separate shop in the suit property leased out to him by Suba Singh and Saudagar Singh, mortga- gees. On behalf of the defendant No. 3, by relying on the terms and conditions expressed in the mortgage deed dated 9.3.1942, it was asserted, that the tenancy created by Suba Singh and Saudagar Singh under the mortgage deed,would not come to an end with the redemption of the suit property by the plaintiffs, in view of an express provision made to the aforesaid effect in the mortgage deed.
6. Twelve issues were framed by the trial Court, besides a preliminary issue relating to the adequacy of court-fee attached to the suit. So far as the preliminary issue is concerned, it was adjudicated upon and dispose of by an order dated 20.11.1976 by holding that the value of the property should be assessed at Rs. 50,000/- for purposes of court-fee and jurisdiction. After the plaintiffs remedied the deficiency in court-fee, the trial Court adjudicated upon the following issues:-
1) Whether the suit is maintainable with regard to all the properties mentioned in the plaint?
2) Whether defendant Hans Raj had died? If so, whether the suit had abated in toto?
3) Whether the description of the property in dispute has not been properly given? If so, the effect?
4) Whether the suit is barred under the provisions of Rent Restriction Act?
5) Whether Nand Singh deceased and plaintiff No. 2 had executed a mortgage deed on 9.3.1942 and whether they had allowed the mortgagee Telu Ram to further lease out the premises? If so, whether the lease was under the terms and conditions of the mortgage deed and if so, its effect?
6) Whether the plaintiffs have consented to the creation of tenancy rights and whether the tenancy rights still subsist? If so, its effect?
7) Whether the plaintiffs are estopped from denying the tenancy rights of the defendants?
8) Whether the plaintiffs mortgaged with possession the property in dispute with Shri Sobha Singh father of defendant No.l and Saudagar Singh, defendant No. 2? If so, on what terms and with what effect?
9) Whether on 25.8.1969 plaintiff got the premises in dispute redeemed?
10) Whether the plaintiffs have become entitled to the possession of the premises and entitled to damages from the date of the service of the summons on the mortgagees? If so, from whom and how much?
11) Whether Ganga Ram and Amar Nath were in possession of the portion of the property as tenant under the owners prior to the alleged mortgage and whether defendant No. 10 inherited their rights? If so, its effect?
12) Relief.
7. On issue No.l, namely, whether a joint suit was maintainable (despite the fact that the defendants were in possession of separate and exclusive portions of the suit property), the trial Court held that the maintainability of a joint suit at the hands of the plain- tiffs against defendant Nos.l to 14 would depend upon the fact whether or not defendant No. 3 to 14 were inducted as tenants by the mortgagees.lf the answer to the aforesaid query is in the affirmative, a common suit would be maintainable against them after the redemption of the mortgaged property on 25.8.1969, otherwise not. On issue No. 2, the trial Court concluded that the suit would not abate on account of the death of Hans Raj, defendant No. 2, during the pendency of the suit. While disposing of issue No. 3, the trial Court opined that the suit property had adequately been described in the plaint and that in the absence of description of the suit property by khasra numbers assigned after consolidation, would not be fatal in view of the mandate of Order VII Rule 3 of the Civil Procedure Code. While adjudicating upon issue No. 4, i.e. whether the provisions of the East Punjab Rent Restriction Act, 1948 (hereinafter referred to as ‘the Rent Act’), were a bar for the institution of the instant suit; the trial Court held that the aforesaid issue would be dependent on the fact whether or not defendant Nos.3 to 14 were inducted as tenants by the mortgagees during the subsistence of the mortgage. The trial Court concluded, that even if the answer to the aforesaid query was in the affirmative, a further question would have to be answered i.e. whether or not the terms and conditions of the mortgage, envisaged that a tenancy created by the mortgagees would continue after re- demption. While interpreting the terms and conditions of the mortgage deed, the trial Court (relying on the fact that the mortgage deed itself expressed that the mortgagor would be entitled to realise rent from the tenants after the redemption of the mortgage) concluded that the tenants inducted by the mortgagee during the subsistence of the mortgage would become tenants of the mortgagors after redemption. The trial Court, therefore, held that the only remedy available to the plaintiffs (so as to gain possession of the suit property, was by seeking eviction of the tenants under the Rent Act). While deciding issue No. 7, the trial Court held that the plaintiffs were estopped from denying tenancy rights to defendant Nos.3 to 14, in view of the conclusion recorded by it under issue No. 6. In its determination on issue No. 8, the trial Court recorded that the plaintiffs had mortgaged the suit property with possession through registered mortgage deeds dated 9.3.1942 and 3.3.1943; wherein the mortgagees were authorised to rent out the property, and the mortgagors bound themselves with the rent agreements executed by the mortgagees. In view of the admission made in the written statement, filed on behalf of respondent Nos.l and 2, the trial Court upheld the plea of the plaintiffs that the suit property was got redeemed by the plaintiffs on 25.8.1969. Since as already noticed above, the trial Court held that the plaintiffs were not entitled to any damages. On issue No.l 1 the trial Court concluded that Ganga Ram and Amar Nath, defendant Nos.3 and 4 were in possession of the suit property before the mortgage was created. The Court also concluded that M/s Inder Singh Jagir Singh, defendant No. 5, of which Inder Singh (defendant No. 6) was partner,were given part of the suit property on rent by Telu Ram (a mortgagee with possession in respect of the suit property) prior to the execution of the registered mortgagee deed dated 9.3.1942 (between the plaintiffs and Suba Singh and Saudagar Singh, defendant Nos.l and 2). The trial Court also recorded a finding of fact that M/s Sohan Singh Gurdyal Singh, Cloth Merchant, Moga (defendant No. 7), of which Sohan Singh (defendant No. 8) and Gurdyal Singh (defendant No. 9) were partners, acquired possession of the suit property as tenants before the execution of the mortgage deed between the plaintiff and defendant Nos.l and 2. Accordingly, the trial Court concluded that defendant Nos. 3 to 9 were inducted into the suit property as tenant under the plaintiffs. Having arrived at the aforesaid conclusion, the trial Court by its judgment/order dated 27.9.1978, dismissed the suit filed by the plaintiffs.
8. The appellants-plaintiffs have approached this Court through the instant regular first appeal so as to impugn the order passed by the trial Court on 27.9.1978. The contention of the learned counsel for the appellants-plaintiffs insofar as issue No.l is concerned is, that respondent Nos.3 and 5 to 14,having not produced any rent notes or receipts to establish that they had taken the suit property on rent from the mortgagors (i.e. the appellants-plaintiffs), it must be concluded that they were inducted into the suit property as tenants by the mortgagees (respondent-defendant Nos.l and 2). According to the learned counsel for the appellants, defendant No. 4 had forged receipts to show that Nand Singh mortgagor had received Rs. 5/- as rent for the month of August, 1944. Likewise, receipts were produced to indicate that a sum of Rs. 10/- had been received by Nand Singh mortgagor as rent from Master Ganga Ram for the month of March, 1945.In order to repudiate the conclusions which the respondent-defendants desire to draw from the aforesaid receipts, learned counsel for the appellants-plaintiffs submits that Nand Singh and Dr. Thakar Singh had mortgaged the suit property on 9.3.1942 and therefore, there was no occasion for them to have received rent from the afore-mentioned defendants either during 1944 or during 1945. In this behalf it was pointed out that the mortgagees had the exclusive right to recover rent from, 1942 to 1969 (i.e. till that the suit property was got redeemed by the appellants-plaintiff on 25.8.1969). In order to show that the receipts, referred to above, were fictitious, learned counsel for the appellants-plaintiffs also points out that the aforesaid receipts had been signed both in Urdu and English which, according to the learned counsel, is sufficient to establish that the same were not genuine. Additionally, it is pointed out, that in the written statement filed on behalf of respondent Nos. 1, 2 and 4, it was stated that the rent for one month was Rs. 2-1/2, whereas in the receipts in question depict a monthly rent of Rs, 5/-. In view of the above, learned counsel for the appellants-plaintiffs vehemently contends that defendant Nos.3 to 14 should be treated to have been inducted as tenants in the suit property for the first time as tenants by the mortgagees i.e., respondent Nos.l and 2. And as such, the joint suit filed by the appellant-plaintiffs should be held to be maintainable against the respondent-defendants.
9. Insofar as issue No. 4 is concerned i.e. whether the suit filed by the appellants plaintiffs is barred in view of the provisions of the Rent Act, the contention of the learned counsel for the appellants-plaintiffs is, that the trial Court had held that the aforesaid statute would be applicable only if the respondent-defendant Nos.3 to 14 were proved to be tenants of the mortgagors (i.e. the appellants-plaintiffs). It is submitted that since all the respondent-defendant Nos.3 to 14 have been shown (on the basis of contentions noticed in the preceding paragraph) to have been inducted as tenants in the suit property by the mortgagees (i.e. respondent Nos.l and 2), the provisions of the Rent Act would not be applicable. In this behalf, it is contended that after the redemption of the mortgaged property by the deposit of the mortgage money, the respondents-defendants were duly bound to hand over vacant possession of the suit property to the appellantsplaintiffs. Attention of the Court has been invited to the statement made by PWI S.S. Jawanda. It is submitted that S.S. iawanda had falsely stated in his cross-examination, that the rent notes had been produced by the appellants-plaintiffs i.e. the mortgagors. It is contended that the correct factual position is, that no rent note was every produced by the appellants-plaintiffs. Attention of the Court was also invited to the decision of the trial Court, on the preliminary issue, wherein also it was held, that no rent note was produced. It is, therefore, vehemently contended that the appellants-plaintiffs cannot be non-suited in view of the provisions of the Rent Act.
10. Learned counsel for the appellant-plaintiffs further contended that the respondents-defendants had not proved the execution of any mortgage deeds prior to the mortgage deeds executed by the appellants-plaintiffs with the respondent-defendant Nos.l and 2 (dated 9.3.1942 and 3.3.1943). It is, therefore, submitted that the alleged execution of a mortgage deed with one Telu Ram by the appellants-plaintiffs, must be deemed to be a matter of imagination of the respondents-defendants. It is contended that had such a deed been in existence, the same would certainly been produced and proved in Court, by the respondents-defendants of the alleged mortgage- deed, would defeat the claim of the appellants-plaintiffs, only if it was expressed therein that the tenancies created by Telu Ram, would continue under the mortgagors i.e. the appellants-plaintiffs even after redemption. In fact, during the course of arguments, learned counsel for the appellants-plaintiffs stated that an adverse inference must be drawn against the respondent-defendants (on account of the non-production of the alleged mortgage deed), to the effect that the same even if executed by the appellant-plaintiffs with Telu Ram, did not incorporate any binding condition that the tenancies created by Telu Ram would continue even after redemption under the mortgagors. It is, therefore, sought to be canvassed that on the redemption of the suit property from the mortgagees on 25.8.1969, the same was returnable to the appellants-plaintiffs without any encumbrance (in the nature of tenancies created by the mortgagees).
11. Insofar as issue No. 6 is concerned, the pointed contention of the learned counsel for the appellant-plaintiffs is that they never consented to the creation of tenancy rights, in favour of those who were inducted into the suit properties by the mortgagees, be it the mortgage executed by the appellants-plaintiffs with Telu Ram, or the mortgage created by the appellants-plaintiffs in favour of the respondent-defendant No.l and 2. It is vehemently contended that in the mortgage deed dated 9.3.1942 (the terms and conditions of which were reitereated in the mortgage deed dated 3.3.1943), did not express that the tenancies created by the respondent Nos.l and 2 would subsist and continue even after the redemption of the suit property. It is, therefore, contended that after the redemption of the suit property on 25.8.1969, as per the settled law on the point, the mortgagors had an absolute right to the vacation of the suit property.
12. Learned counsel for the appellants-plaintiffs while controverting the conclusions drawn by the trial Court on issue No. 7, pointed out that the trial Court had erroneously drawn a conclusion that the respondent-defendant No. 3 to 14 had taken the premises on rent on the express understanding that they would not be dispossessed at the time of redemption. It is pointed out that no understanding was given by the appellants-plaintiffs i.e., the mortgagors to any of the tenants i.e. respondents Nos.3 to 14. In this behalf, it is pointed out that no evidence, whatsoever, was produced by the respondents-defendants to show that the appellants-plaintiffs had acquiesced to their continuation as tenants in the suit property even after the redemption thereof. It is also pointed out that all the rent receipts produced on the record of the case are in favour of the mortgagees and none had been issued by the appellants-plaintiffs i.e., the mortgagors. It is,therefore, contended that the conclusions drawn by the trial Court were apparently erroneous.
13. Insofar as issue No. 8, is concerned, it is pointed out by the learned counsel for the appellants-plaintiffs that the trial Court correctly concluded that the appellants-plaintiffs had mortgaged the suit property with possession with Suba Singh and Saudagar Singh i.e. respondent-defendant Nos.l and 2.1t is, however, submitted that the trial Court erred in interpreting the mortgage deed while recording its finding that the mortgagors (i.e. the appellants-plaintiffs) not only allowed the mortgagees (i.e. the respondent-defendants Nos. 1 and 2) to occupy the suit property but also vested a right in them to induct tenants therein, however, without any express stipulation that the tenancies created by the. mortgagees would subsist even after the redemption of the suit property. It is, therefore, submitted that immediately on the redemption of the suit property on 25.8.1969, the appellants-plaintiffs were entitled to vacant possession thereof.
14. Learned counsel for the appellants-plaintiffs, while advancing his contentions on issue No. 10, reiterated that the appellants-plaintiffs were entitled to vacant possession of the premises after the redemption thereof on 25.8.1969,and were, therefore, also entitled to damages as claimed by them in the suit. In this behalf it was pointed out, that it had been established on the record of the trial Court that none of the respondent-defendant Nos.3 to 14 had been inducted as tenants in the suit property by the appellants-plaintiffs,and that they had all been inducted as tenants by the mortgagees (i.e. the respondent-defendant Nos.l and 2). According to the learned counsel, as per the settled law, a tenancy created by a mortgagee comes to an end on redemption of the mortgaged property. It is, therefore, submitted that the plaintiffs were entitled to possession of the mortgaged property after its redemption. Insofar as the issue of damages is concerned, it is submitted that the appellants-plaintiffs were also entitled to damages from the date of issuance of summons, on account of the fact that the respondent-defendant Nos.3 to 14 were continuing in possession of the suit property without payment of rent. This action of the respondent Nos.3 to 14, according to the learned counsel for the appellants-plaintiffs, did not flow from any legal right vested in them. It is further pointed out that the appellants-plaintiffs had suffered tremendously on account of the protracted litigation which has been going on for more than 30 years.
15. The contention of the learned counsel for the appellants-plaintiffs insofar as issue Nos.ll is concerned, is that the trial Court had confused the conclusion by giving mixed findings in respect of all the tenants. It is pointed out that the trial Court held defendant No. 10, Durga Dass, to be in possession of the suit property before the mortgage was created between the appellants-plaintiffs and the respondent-defendant Nos.l and 2, on the basis of a statement given by DW12 Balbir Singh to the effect that Ganga Ram and Amar Nath had taken possession of a part of suit property as tenants from Nand Singh (i.e. appellant-plaintiff No. 1). In his cross-examination. Balbir Singh (DW12) stated that Durga Das had taken possession of the suit property about 25 years ago. Referring to another part of the statement of DW12, it is pointed out that Durga Das was stated to have inherited the tenancy from Nihal Kaur widow of Ganga Ram, on account of which mutation entry dated 10.5.1966 was made in the records. Because of the contradiction in the statement of Balbir Singh, it is submitted that he was not a reliable witness, and therefore, his statement should have been ignored while adjudicating upon the controversy. If the statement is presumed to be correct on the date it was made (on 25.4.1978), the tenancy would be deemed to have been created in the year 1947-48. At the said juncture, the property was under the mortgage of the respondent-defendant Nos. 1 and 2 on account of the mortgage deeds executed on 9.3.1942 and 3.3.143. It is, therefore, submitted that it is clear that the tenancies in question were not created by the appellants-plaintiffs i.e. the mortgagors, but the same were created by the mortgagees i.e. respondent-defendant Nos.l and 2.1n order to controvert the conclusion drawn by the trial Court, learned counsel for the appellants-plaintiffs,pointed out that the reliance on Exhibits DW12/1, DW12/3, DW12/3, DW12/4, DW12/5 and DW12/10 (copies of Jamabandis and Khasra Girdawaris) was wholly misconceived as the Khasra Girdawaris produced at the behest of the respondent-defendants were not the ones in respect of the suit property. In this behalf, Court’s attention has been invited to the Khasra numbers mentioned in the mortgage deed dated 9.3.1942. It is, therefore, submitted that the respondents-defendants failed to establish their possession as tenants over the suit property through the afore-stated revenue records. Accordingly, it is submitted that the entries made in the revenue records should not be relied upon. Yet again, learned counsel for the appellants-plaintiffs seeks to conclude that the respondent-defendant Nos.3 to 14 were inducted as tenants after the execution of the mortgage deeds by the appellants plaintiffs in favour of the respondent-defendant Nos.l and 2 and as such, on the redemption of the mortgaged property the mortgagors i.e. the appellants-defendants were entitled to vacant possession of the same.
16. Relying on the judgment rendered in Messrs Bawa Electric Radio Service v. Smt.Sham Kaur and Ors. (1972)74 P.L.R. 999, it was submitted that the proposition of law is well settled i.e., that concurrence to the grant of lease by a mortgagor cannot lead to the presumption of the mortgagor’s concurrence to the continuation of the tenancy after redemption. Relying on M/s Sachalmal Parsram v. Mst. Ratanbai and Ors., A.I.R. 1972 S.C. 637, learned counsel for the appellants-plaintiffs submitted, that a lease ere ated by a mortgagee in possession terminates on the redemption of the mortgage. The aforesaid legal position expressed by the Apex Court is stated to have been reiterated by this Court in Jagan Nath Piare Lal v. Mittar Said and Ors. A.I.R. 1970 Punjab and Haryana 104.
17. I have considered the submissions advanced by the learned counsel for the appellants-plaintiffs. The first and foremost conclusion which learned counsel for the appellants-plaintiffs wishes this Court to draw is that respondent Nos. 1 and 2 created tenancies in favour of respondent Nos.3 to 14 after the execution of the mortgage deeds dated 9.3.1942/3.3.1943. The important thing, however is, would the appellants-plaintiffs succeed if a finding to the aforesaid effect is recorded in favour of the appellant-plaintiffs? It is, therefore, more appropriate in the first instance to determine whether or not the appellants-plaintiffs would succeed by presuming (in their favour) that the respondent-defendant Nos.3 to 14 reinducted as tenants on the suit property by the mortgagees (i.e. by respondent Nos.l and 2) after the execution of the mortgagee deeds dated 9.3.1942 / 3.3.1943. In other words, if the basic arguments advanced by the learned counsel for the appellants-plaintiffs on the factual aspect of the matter, i.e that the respondent-defendant Nos.3 to 14 were inducted as tenants in the suit property by the mortgagees (i.e. the respondent-defendant Nos. 1 and 2), which is essential for them to succeed on various issues, is presumed in their favour, would their pleas* raised in the instant controversy, be acceptable? If the answer is in the affirmative, it would then be essential to determine the aforestated factual aspect also, otherwise it would be an exercise in futility.
18. The legal position emerging from the judgments relied upon by the learned counsel for the appellants-plaintiffs is, that the tenancies created over a mortgaged property by a mortgagee would come to an end on the redemption of the mortgaged property, unless the mortgage deed expressly records that a tenancy created by a mortgagee would subsist even after redemption.In other words,unless the mortgage deed acknowledge in express terms, that the tenancies created by the mortgagee’i.e. after redemption, the same would cease to be effective from the date of redemption. The aforesaid legal position is acknowledged even by the learned counsel for the appellants-plaintiffs. If it is presumed, as noticed above, in favour of the appellants-plaintiffs, that the tenancies in the instant case, were created in favour of respondent Nos.3 to 14, by the mortgagees (i.e. respondent Nos.l to 2) after the execution of the mortgage deeds dated 9.3.1942/ 3.3.1943, can the appellants-plaintiffs demand vacant possession and/or cessation of the tenancies created by respondents-defendant Nos.l and 2 (i.e. the mortgagees) on redemption thereof? The answer would be in the affirmative only if the mortgage deeds specifically provide that the tenancies created by the mortgagees would subsist even after redemption of the mortgaged property. The question, therefore, to be adjudicated upon is, whether there was any such stipulation between the parties so as to envisage continuation of tenancy rights in the respondent-defendant Nos.3 to 14, even after redemption? Answer to this query according to the learned counsel representing the rival parties is to be based on only a few words recorded in the mortgage deed dated 9.3.1942 (terms and conditions whereof were adopted in the mortgage dated 3.3.1943). The sentence in question has been read and re-read over and over again. To my mind, when translated in English, the sentence should read as follows:-
“At the time when the mortgage money is repaid: from that day after taking possession, the mortgagor would be entitled to future rent.”
The issue of entitlement to future rent, after redemption of the property, can arise only if the tenancy is to subsist after redemption, and not otherwise. By expressly indicating that the mortgagors would be entitled to future rent after redemption of the propertyjt is clear that the mortgagors who had expressly authorised the mortgagors (i.e. respondent Nos.l and 2) to lease the mortgaged property during the subsistence of mortgaged property during the subsistence of mortgage, also acknowledged that the lease created by the mortgagees would continue after the redemption of the property by asserting, that with effect from the date of redemption the mortgagors would be entitled to future rent. A demand for rent, is a demand against a tenant. Rent cannot be claimed from a trespasser. Ff the tenants inducted by the mortgagees were to subsist only for the duration of the mortgage, such tenants who remained in possession after redemption would assume the status of trespasses; with effect from the date of redemption. Since she appellants-plaintiffs made a demand for rent (in the mortgage deed) from the tenants inducted by the mortgagees after redemption also as per the term extracted above),it is imperative to conclude that the ten- ants (respondent-defendants Nos.3 to 14) were not to be treated as trespassers after redemption. It is, therefore, clear that the mortgagors accepted the continuation of the ten- ancies created by the respondent-defendant Nos.land2 after redemption. Having arrived at the aforesaid conclusion it is clear (from the conceded proposition of law noticed above) that the tenancies presumably created by respondent Nos.l and 2, would subsist even after the redemption of the mortgaged property on 25.8.1969. From the date of redemption, the tenancies which were earlier under the mortgagees (i.e. respondent-defendant Nos.l and- 2), would be deemed to be under the mortgagors i.e. the appellants-plaintiffs.
19. In view of the aforesaid conclusion, it is not essential to record individual findings in respect of the creation of tenancies in favour of respondent Nos.3 to 14 because even after evaluating the legal claims of the appellants-plaintiffs by presuming a fact situation most suitable to the appellant-plaintiffs, a conclusion favourable to the appellants-plaintiffs cannot be recorded.
20. Having drawn the conclusion that respondent Nos.3 to 14 would continue as tenants under the appellants-plaintiffs after the redemption of the suit property on 25.8.1969, it is clear that the demand of eviction of the aforesaid defendants can only be made under the East Punjab Urban Rent Restriction Act, 1948. In other words, the conclusion drawn by the trial Court while adjudicating upon issue No. 4 is affirmed. The suit field by the appellants-plaintiffs for vacant possession of the suit property from the respondent-defendant Nos.3 and 14, is therefore, held to be not maintainable in law. Dismissed.