JUDGMENT
A.K. Saxena, J.
1. Being aggrieved by the judgment and decree dated 28-3-1990 passed in Civil Appeal No. 32-A/88 by the Court of Second Additional District Judge, Tikamgarh arising out of judgment and decree dated 5-9-1984 passed in Civil Suit No. 22-A/84 by the First Civil Judge Class-II, Tikamgarh, the appellants/plaintiffs preferred this appeal.
2. The plaintiffs filed the suit against the defendant/respondent for redemption, recovery of possession of shop No. 12 situated in ward No. 1 Tikamgarh and for mesne profit on these grounds that the plaintiffs took the loan of Rs. 2,000/- from the defendant and they mortgaged the above mentioned property with the defendant. The mortgage deed is a registered document. The plaintiffs created usufructuary mortgage in favour of defendant by giving possession of the disputed shop to him. It was agreed upon between the parties that the defendant shall pay Rs. 50/- per month as rent after deducting Rs. 20/- per month of interest. The property was mortgaged for three years and thereafter, the plaintiffs were at liberty to repay Rs. 2,000/- to the defendant and take back the possession of the disputed shop. There was no relationship of landlord and tenant between the parties. The defendant failed to pay the rent subsequently. A notice was served on defendant and the amount of Rs. 2,000/- was paid but, the defendant refused to take that amount. Therefore, the suit for redemption of the property, recovery of possession and mesne profit was filed.
3. The defendant’s plea was that no deed of usufructuary mortgage was executed between the parties. Before the execution of mortgage deed, the defendant was in possession of the disputed shop as tenant and he was paying the rent since beginning. Only symbolic possession was taken by the defendant after execution of the document. The defendant was tenant of the plaintiffs and he was always ready to pay the rent of disputed property but, the plaintiffs wanted to raise the rent from Rs. 70/- to Rs. 100/-and they were also asking a loan of Rs. 10,000/- but when he refused, the plaintiffs filed this suit.
4. The trial Court decreed the suit in favour of plaintiffs and against the respondent/defendant holding that the disputed instrument creates usufructuary mortgage whereas, the First Appellate Court reversed the finding of trial Court and held that there was relationship of landlord and tenant between the parties and the mortgage was simple, therefore, the plaintiffs are entitled to symbolic possession and they cannot get the actual possession of the disputed shop and while allowing the appeal partly, the judgment and decree passed by the trial Court was modified accordingly.
5. This appeal has been admitted on the following substantial question of law:
(A) Whether mortgage deed (Ex. P/1) could be interpreted to be a simple mortgage and not a usufructuary mortgage ?”
(B) Whether under the facts and circumstances of the case, on the passing of a decree for redemption of mortgage the plaintiffs are entitled to symbolical possession only of the mortgaged shop and not its actual and vacant possession ?
6. The learned Counsel for the appellants placed his reliance on Rohini Prasad v. Kasturchand 2000 (4) MPHT 5 and Ishwar Dass Jain (dead) through L.Rs. v. Sohan Lal (dead) by L.Rs. and argued that the First Appellate Court misread the evidence and relied upon the evidence which is not admissible and failed to consider the material and relevant evidence. Therefore, the High Court can interfere in the second appeal.
7. In this second appeal, the question of interpretation of mortgage deed Ex. P. 1 is involved. According to plaintiffs, the instrument can be called usufructuary mortgage whereas, as per contention of the defendant, this was a simple mortgage and before that the defendant was in possession of the disputed shop and the relationship of landlord and the tenant was in existence between the parties, therefore, the plaintiffs cannot get the actual possession of this disputed shop. On the other hand, it has been contended on behalf of plaintiffs/appellants that the instrument contains all the ingredients of usufructuary mortgage and there was no relationship of tenant and landlord between the parties and for the first time the defendant took the possession of disputed shop at the time of execution of this document, therefore, the plaintiffs are entitled for redemption of the mortgaged property and actual possession of the property along with mesne profit.
8. In Bhaskar Waman Joshi (deceased) v. Shrinarayan Rambilas Agarwal (deceased) laid down as follows:
The question in each case is one of determination of the real character of the transaction to be ascertained from the provisions of the deed viewed in the light of surrounding circumstances. If the words are plain and unambiguous they must in the light of the evidence of surrounding circumstances be given their true legal effect. If there is ambiguity in the language employed, the intention may be ascertained from the contents of the deed with such extrinsic evidence as may by law be permitted to be adduced to show in what manner the language of the deed was related to existing facts. Oral evidence of intention is not admissible in interpreting the covenants of the deed but evidence to explain or even to contradict the recitals distinguished from the terms of the documents may of course be given.
9. In the instant case, the whole dispute with regard to interpretation of document relates to only condition No. 2 in which it has been stated that the shop may fetch a rent of Rs. 70/- per month and since the rate of interest is 1% per month and the interest would come to Rs. 20/- per month, therefore, this amount of interest will be deducted from the above income of rent and remaining amount of Rs. 50/- per month will be paid by the mortgagee to the mortgagor. As per learned Counsel for the appellants, the words of the instrument are plain and unambiguous and these words clearly show that for the first time, the actual possession of the shop was handed over to the defendant after execution of this document. Per contra, the learned Counsel for the respondent urged that the document shows that the defendant was tenant on monthly rent of Rs. 70/- and since, the plaintiffs took the loan of Rs. 2,000/-, therefore, the amount of Rs. 20/- on account of interest was deducted and the defendant was liable to pay only Rs. 50/- per month rent to the plaintiffs. The document becomes simple mortgage and if the suit is decreed for redemption of mortgaged property, the plaintiffs can get symbolic possession of the disputed shop but, they are not entitled to actual possession.
10. The trial Court, after analyzing the evidence of both the parties, came to this conclusion that Ex. P.I document is usufructuary mortgage whereas, the First Appellate Court found that there was relationship of landlord and tenant between the parties and before execution of this document, the defendant was in possession of the disputed shop and, therefore, the document becomes simple mortgage and the plaintiffs are entitled for symbolic possession and not for actual possession.
11. Section 58(d) defines usufructuary mortgage as follows:
58(d) Usufructuary mortgage Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage money, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest, or in payment of the mortgage-money, or partly in lieu of interest or partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.
12. While deciding the nature of instrument, in the opinion of this Court, the First Appellate Court has come to wrong conclusion on the assumption that there was relationship of landlord and tenant between the parties. In the last of para 13 of its judgment, the First Appellate Court came to this conclusion that it appears that the plaintiffs were landlord and the defendant was tenant but, this conclusion is not based on the correct appreciation of evidence whereas, the trial Court has appreciated the oral evidence as well as documentary evidence correctly. The conclusion of First Appellate Court is not conclusive because it has been stated by the learned Judge of the First Appellate Court that it appears that the parties were maintaining relationship of landlord and tenant.
13. The plaintiffs witnesses have categorically denied that the defendant was in possession of the disputed shop before execution of mortgage deed. The document Ex. P.I nowhere discloses that Rs. 70/- per month rent was fixed between the parties. On the other hand, it has come in the evidence as well as it is also clear from the document Ex. P. 1 that the parties reached to this assumption that the disputed shop may fetch rent of Rs. 70/- per month. It is very much clear from the oral evidence that since the loan of Rs. 2,000/- was given by the defendant to the plaintiffs and the interest at the rate of one per cent per month would be equivalent to Rs. 20/- per month, therefore, the plaintiffs may suffer a loss of Rs. 50/- per month and that is why, it was agreed upon between the parties that this deficit amount would be payable by the mortgagee to the mortgagor. The words of condition No. 2 and the remaining words of the document Ex. P. 1 do not disclose that the defendant was tenant and he was paying Rs. 70/- per month as rent prior to execution of this document, therefore, the findings of the First Appellate Court that the document is simple mortgage and before execution of this document, the defendant was tenant of the shop at the rate of Rs. 70/-per month rent, are based on assumptions only and not on the basis of oral and documentary evidence. The learned Judge of First Appellate Court has totally failed to reach at final conclusion. Everywhere, it has been stated by him that it appears that the defendant was tenant before execution of the document in question and the rent was Rs. 70/- per month and, therefore, only symbolic possession was given to the defendant at the time of execution of the document. In the opinion of this Court, the pleadings cannot take the place of proof merely on the basis of assumption. On the other hand, the trial Court has given definite finding that the usufructuary mortgage was created through document Ex. P.I and there was no relationship of landlord and tenant btween the parties. This Court is also of the view that the recitals of instrument Ex. P. 1 show that for the first time, the actual possession was handed over to the defendant by the plaintiffs at the time of execution of this document. On perusal of condition No. 2, and other conditions, it is very much clear that the nature of document is of usufructuary mortgage and this document cannot called an instrument of simple mortgage.
14. In the present case, it is very much clear that the mortgagor delivered the possession of the disputed shop to the mortgagee and authorized him to receive Rs. 20/-per month as interest and since the loan amount was less and probable rent was high, therefore, it was agreed upon between the parties that the remaining amount shall be paid by the mortgagee to the mortgagor. It is no where stated in the whole document that the defendant was in possession of the disputed property as tenant or symbolic possession of the shop was handed over to him. Therefore, the trial Court has rightly reached at this conclusion that the disputed transaction was usufructuary mortgage and not simple mortgage and, therefore, the plaintiffs are entitled for redemption and to take actual possession of the disputed shop and mesne profits. The trial Court has rightly decreed the suit in favour of plaintiffs and against the defendant whereas, the First Appellate Court modified the decree mere on assumption and not on the basis of recitals of the document Ex. P. 1. In these circumstances, the second appeal deserves to be allowed and the decree passed by the First Appellate Court is liable to be set aside.
15. For the foregoing reasons, the second appeal filed on behalf of appellants/ plaintiffs against the respondent/defendant is allowed and the decree passed by the First Appellate Court is set aside whereas, the decree passed by the trial Court is affirmed. No order as to costs.