- (1.)STAPLES , A.J.C. 1. The appellant is the malguzar and lambardar of mauza Mundi in the Khandwa tahsil of the Nimar District, and he brought a suit for possession of the abadi site and for a mandatory injunction for removal of a structure upon that site. The suit was dismissed and an appeal preferred by the plaintiff was also dismissed by the Additional District Judge. The plaintiff has now preferred this second appeal. The only question to be decided is whether the landlord has a right of re-entry. The facts of the case are somewhat peculiar. The site in dispute was admittedly granted to a barber named Rama. Rama however executed a possessory mortgage deed, mortgaging his house and presumably also the site, in favour of the respondent in 1919 for Rs. 300. The mortgage contained a condition of sale. The mortgagee took possession in 1926, but in December of that year he again put Rama in possession, and it is contended that Rama is still in possession. The Courts below have found that the execution of a possessory mortgage is not by itself a transfer which entitles the landlord to take possession of the site, and, as Rama is still in occupation of the house in suit, the landlord has no right of re-entry.
(2.)I am clearly of opinion however that this view taken by the lower Courts is wrong. There is no doubt that a mortgage is a transfer and, although as held in Labhchand v. Daryasingh, (A.I.R. 1925 Nag 204) the fact that a house and site in the abadi has been mortgaged with possession would not give the landlord a right of re-entry as long as the original occupant had not finally parted with his rights, still, when the occupant has either finally parted with his rights or shown an intention of giving up all claims to redeem the property, then the transfer is complete and the landlord has a right of re-entry. For this view I would refer to the other case cited by the lower appellate Court Bhagwan v. Raghubir Dayal, (A.I.R. 1925 Nag 396), which appears to have been misunderstood by the Judge of that Court. In the present case there can be no doubt that, although Rama is actually in occupation of the site, he has clearly parted with all rights over it and is only a tenant of the mortgagee, the respondent Nathoolal,
The facts may be briefly stated to make the position clear. Rama executed a mortgage in favour of Nathoolal on 12th March 1919. It was a possessory mortgage, but subsequently Rama was again in possession as a tenant on a monthly rent of Rs. 2 and he executed a rent-note on 13th December 1922 in favour of Nathoolal. That note is on record as Ex. D-1. Rama failed to pay rent and Nathoolal filed a suit, Civil Suit No. 54 of 1924, against him praying for a decree for arrears of rent for possession of the house and for costs. Nathoolal obtained possession in 1926, but he again let out the house to Rama. It is clear then that, even though Rama may be in actual occupation of the house he is only a tenant at will and has no rights over the house, the owner being Nathoolal. From the rent note (Ex. D-l) it is clear that Rama has given up all rights of redemption and has acknowledged Nathoolal as the owner. In the circumstances it is clear that there has been a complete transfer and that the landlord has therefore a right of re-entry. The view taken by the lower Courts is incorrect and I therefore set aside the decree of the lower appellate Court and instead pass a decree for possession in favour of the plaintiff appellant. Costs of the appeal in both Courts and of the suit will be borne by the defendant-respondent.