Inder Dev Dua, J. - (1.) THIS is an appeal on behalf of Dr. Gian Singh Defendant No. 2 in the court below from a judgment and decree of the Subordinate Judge ist Class, Phul decreeing the suit of Mohan Lal and Om Parkash Plaintiffs and passing a preliminary decree for Possession of the suit property in their favour. The facts giving rise to the controversy may briefly be stated.
(2.) THE property in question described as residential shop by the plffs. was owned by Shri Siri Ram son of L. Bihari Lal Aggarwal and was mortgaged by him with possession with L. Chanan Ram Defendant No. 1, in the suit for Rs. 11,500/ -. I need hardly state that this amount was made up of two transactions, the first one a mortgage for Rs. 10,000/ - of December, 1958 and the second one a mortgage for Rs. 1500.A of March, 1959. Dr. Gian Singh, Appellant in this Court and Defendant No. 2 in the Court below, was a tenant of the premises since 1956 paying a sum of Rs. 1,300/ - per annum by way of rent, Siri Ram later sold the property to the Plaintiffs in September, 1960 authorizing the vendees to redeem it from the mortgagee -Defendant on payment of the mortgage money. The Vendees instituted the suit out of which the present appeal has arisen in January, 1961. Dr. Gian Singh Defendant No. 2 raised a number of preliminary pleas and resisted the claim of possession by the Plaintiffs. Defendant No. 1 also filed his written statement and prayed for the dismissal of the suit, 'but on appeal in this Court we are only concerned with Dr. Gian Singh's case. As a matter of fact, the issues tried in the Court below are also concerned with the right of the Plaintiffs to obtain possession of the suit property from Dr. Gian Singh. Issues settled are in the following terms: 1. Whether the disputed shop was originally taken on lease by Dr. Gian Singh from Siri Ram and if so its effect? and 2. Whether the Plaintiffs are entitled to a decree for possession of the suit property? The Court below came to the conclusion that on the extinction of the mortgage by redemption the tenancy rights of Dr. Gian Singh were extinguished and he was liable to deliver possession to the owner of the property. This conclusion is preceded by the observation of the Court below that Dr. Gian Singh was proved to be the tenant of Siri Ram, the original owner, before ho. mortgaged the property in favour of Chanan Ham and others but after the execution of the mortgage -deed he became a tenant under the Mortgagees.
(3.) ON appeal Shri Ganga Parshad Jain who claimed to be a counsel in another case in which the same point has arisen and is being heard by another Bench also expressed a desire to be heard as amicus curiae and we had the advantage of hearing the arguments both of Shri Sachar and Shri Ganga Parshad Jain. Our attention has been drawn to two unreported decisions of this Court which are said to cover the point which arises for consideration in the case inland. One is a Letters Patent Appeal No. 221 of 1961 (Saradari Lal v. Ram Lal) decided by the learned Chief Justice and my learned brother Grover J. on 26 -12 -1961 (Punj) and the other is Mam Raj c. Bash -eshar Parshad, Civil Revn No. 332 of 1961, decided by Mehar Singh J. on 2 -3 -1962(Punj). In the Letters Patent Appeal Sardari Lal (Appellant in this Court) was occupying a shop in Fazilka town as the tenant of one Uttam Chand. The latter executed a mortgage of the said shop in favour of the Appellant himself for Rs. 3,500/ - The mortgage was to subsist for one year after which Uttam Chand was entitled to redeem it and on his failure to do so the mortgagee was entitled to recover the mortgage -amount in the usual manner. Sardari Lal was to retain possession of the shop; and Uttam Chand had no right to recover rent and Sardari Lal had no right to recover interest on the mortgage -amount. On Uttam Chand's death in December, 1959, his heirs sold the equity of redemption to Ram Lal who instituted a suit for redemption in February, 1960. The question which arose in the litigation related to the position of Sardari Lal on the redemption of the shop. The trial Court granted a decree for redemption but only symbolical possession was ordered to be delivered to the Plaintiff. On appeal the learned District Judge accepted the Plaintiff's contention holding that by entering into the mortgage and coming into possession as mortgagee Sardari Lal had allowed tenancy in his favour to terminate and that he could not be restored back to his position as a tenant on the redemption of the mortgage. Shamsher Bahadur J. on second appeal affirmed the conclusion of the District Judge. On Letters Patent Appeal it was observed by the Court that the question whether a given mortgage by a landlord in favour of his fen ant implies a complete surrender of the tenant's rights in the tenancy on the redemption of the mortgage is a question of fact to be decided according to the terms of the contract between the parties. In the cited case there was complete silence on the point and the Bench felt that if the parties to the mortgage had intended the tenancy to terminate finally on account of the creation of the mortgage this would certainly have been specified in the mortgage agreement. In the absence of any such specific provision in the contract of mortgage, the Bench took the view that the tenant had not surrendered his rights and, therefore, the intention of the parties must be interpreted to be that on redemption the tenant would still retain his rights as a tenant. Motilal Govindram v. Gopi Krishna Shadilalji, 1961 MPLJ 66, was relied upon in support of the view taken, though the following decisions cited for the contrary view were also noticed in the judgment: Godasankara Valia Raja v. Tharappan Vareed : AIR 1961 Ker 293 and Meenakshi Amma v. Kizhakke Valath Narayani : AIR 1957 Mad 212. In Mam Raj's, case Civil Revn. No. 332 of 1961, DA - 2 -3 -1962 (Punj) the learned Single Judge of this Court allowed the revision ex parte because nobody had appeared for the Respondents. The facts in that case are that Rameshwar Dass was the owner of the shop in dispute and Mam Rai (Petitioner in this Court) was a tenant since about 1948 or 1949. The shop was situated at find. The Patiala and East Punjab States Union Urban Rent Restriction Ordinance, 2006 Bk. gave certain protection to the tenant. On 12 -12 -1949 Rameshwar, Dass mortgaged the shop with possession with Munshi Ram. On that very day the tenant executed a rent note in favour of the mortgagee. On 2 -1 -1959 Basheshar Parshad (Respondent in this Court) purchased the equity of redemption from Rameshwar Dass and redeemed the shop some time before 12 -11 -1959. On 17 -7 -1959 the tenant Mam Raj applied to the Rent Controller under Section 12 of the East Punjab Urban Rent Restriction Act for an order for repairs of a wall and also for permission to deduct its costs from the rent payable to Basheshar Parshad. From this, this Court inferred that perhaps the shop had been redeemed before July 1959. On June 18 1960 the Rent Controller found Mam Raj to be a tenant of Basheshar Parshad and entitled to take steps to repair the wall. On appeal the appellate authority dismissed the tenant's application holding that there was no relationship of landlord and tenant between the Parties inasmuch as that in December, 1949 on the dale when the mortgage was created Mam Raj became a tenant of the mortgagee by virtue of the execution of a new rent -note and that the said tenancy must obviously coma to an end with the redemption of the mortgage. After the redemption of the shop, therefore, Mam Raj ceased to be a tenant under Basheshar Parshad. The learned Single Judge after a reference to Asa Ram v. Mt. Ram Kali : AIR 1958 SC 183, proceeded to observe that if it were a case of the mortgagee introducing a tenant after the mortgage there would be some support for the view taken by the appellate authority, but since in the case before the learned Judge the tenant was a tenant of the shop under the owner prior to the mortgage and continued to be a tenant even under the mortgagee it made no difference. Here, it may be pointed out that under Section 2(c) of the Pepsu Ordinance, the tenant there, according to the view of the learned Single judge, had become a tenant of Munshi Kara mortgagee. The learned Judge, however, proceeded to observe that since the word "landlord" included every person deriving title under a landlord, when Munshi Ram took mortgage of the shop from Rameshwar Dass, the mortgagee became landlord of the tenant and had, there -fore, protection against eviction subject to the tenancy law. The execution of a fresh note by the tenant in favour of the mortgagee on the date of the mortgage -deed, according to the view of the learned Single Judge, made no difference in substance, for, as he put, if "it practically amounts to no more than attornment by him to Munshi Ram as landlord". It was, therefore, considered to be incorrect that mortgagee Munshi Ram had created a tenancy in favour of Mam Raj. On this basis the revision was allowed and the order of the Rent Controller restored after setting aside that of the appellate authority. Our attention has also been drawn to Asa Rani's case : AIR 1958 SC 183 to which reference was made by the learned Single Judge in Mam Raj's case. Civil Revn. No. 332 of 1961, D/ - 2 -3 -1962 (Punj) and it has been emphasised that it is only if the mortgagee had himself created a tenancy that one could hold the tenancy not to enure beyond the period of the mortgage. Whether the observations in the judgment in Mam Raj's case, Civil Revn. No. 332 of 1961, D/ - 2.3.1962 (Punj) that execution of a fresh rent -note made no difference on the facts and circumstances of that case is right or wrong does not directly concern us; for, we are not sitting on appeal against that judgment. The ratio of the Supreme Court decision however, which was also binding on the learned Judge deciding Mam Raj's case, Civil Revn. No. 332 of 1961, D/ - 2 -3 -1962 (Punj) is clear and if a mortgagee creates a fresh lease even though its terms are same or similar to those of the lease in favour of the mortgagor it might well attract the ratio of the 'Supreme Court decision.;