Misra, J. - (1.) THIS contest in the suit which gives rise to this appeal was one between the mortgages of two tenancy plots in village Bhopatpur in district Bahraich and a tenant to whom those plots were let out by the landlord after they were relinquished by the mortgagor.
(2.) THE suit was for Possession and damages by the new tenant Bamzan Ali and it was directed against Sarju the present 'holder of the mortgagee rights under two possessory deeds (Exs. A -l and A -2) dated December 16, 1906 and May 10, 1921. The controversy between the parties is now confined to one Point only, namely whether or not the relinquishment was valid The two lower Courts have upheld the relinquishment and in view of the findings reached by them on other matters which were then in dispute, they agreed in decreeing the plaintiff's suit for Possession and for Rs. 15 as damages. In this second appeal by the mortgagee -defendant, it is urged that inasmuch as the plots were in his possession, there could be no surrender by the previous tenant Dasrath, delivery of possession being one of the conditions precedent to valid relinquishment under Section 20, Oudh Rent Act. The appellant, therefore, contends that the relinquishment he held to be illegal invalid and the plaintiff's tenancy wholly unavailing against him.
(3.) IT is to be noticed that the defendant who holds the two mortgages of tenancy rights had no privities of contract with the landlord (Jang Bahadur v. Rae Raja O.C. 265) and he could, not therefore, prevent him from accepting the surrender from Dasrath The provisions for relinquishment contained in Section 20 Oudh Bent Act were not exhaustive and it was possible for a tenant to surrender his rights to landlord by private negotiation. All that was necessary was that there should be some overt action on the part of the tenant in furtherance of the surrender. Where the tenant was in actual physical possession delivery of possession was an essential ingredient of a valid relinquishment. But where the property was in possession of some other subordinate holder, e. g. a sub -lessee (Batyadeo Chaube v. Kesho Chaua -1912 E.D. 716) or a mortgagee (Mohan Lal v. Jangi Singh, 1923.R.D. 466 and Zuban Ahmad v. Subrati -192 J R.D. 483) obviously there could be no physical abandonment of possession and mere execution of a deed of relinquishment or some other similar act could constitute sufficient evidence of surrender. It has been hold in Dargahi Lal v. Manna, (1943 R.D. 125) that in cases where the tenant is not in physical possession of the land all that is necessary is that he should give up such possession as he is capable of passing and since all that he had was constructive possession all that need have been done was to yield up that sort of possession to the landlord. The learned Judge observed in this connection that: The interest of the sub -tenant ceases with the tenant and if the sub -tenant retains possession his position is only that of a trespasser as has been held in several decisions by the Board of Revenue. It is true that mere notice of surrender is not enough to terminate the relationship of landlord and tenant. Relinquishment of possession is also necessary. It is, however, not necessary that actual physical possession should be delivered in every case. All that is necessary is that the tenant who has given notice of relinquishment should give up his own possession.;