M.R.Sharma, J. - (1.) THIS appeal under Clause X of the Letters Patent arise out of the following facts. Sham Lal Defendant No. 2 owned the shop in dispute. He mortgaged the same with possession in favour of Ishwar Chander Defendant No. 1 vide mortgage deed dated August 23, 194(sic) Exhibit D. 22, for a sum of Rs. 10,000/ -. Subsequently, on November 7, 1945, another charge of Rs. 2,000/ - was created by Defendant No. 2 in favour of Defendant No. 1 vide mortgage deed Exhibit D. 23. The mortgagee took possession of the shop in dispute and rented it out in favour of the Appellant in 1956. Vide registered sale deed dated February 28, 1967, Exhibit P. 1. Sham Lal Defendant No. 2 sold the equity of redemption for a sum of Rs. 18,000/ - to Jai Bhagwan and others, Plaintiff Respondents.
(2.) JAI Bhagwan and others, the Plaintiff -Respondents, filed a suit for redemption and impleaded the Appellant as a Defendant in that suit because they claimed actual possession of the shop in dispute for him. On the pleadings of the parties certain issues were raised and the material issue for the decision of this case is issue No. 3, which reads as under: Whether Defendant No. 3 is not liable to be ejected in this suit ? The learned trial Judge decided this issue against the Appellant and a decree for actual possession of the shop in dispute was granted in favour of Jai Bhagwan and others, the Plaintiff Respondents. The Appellant who was originally arrayed as Defendant No. 3, filed a first appeal against the judgment and decree of the learned trial Judge, which was dismissed vide judgment under appeal.
(3.) THE sole point which calls for determination is whether a tenancy created by a mortgagee in possession subsists after the redemption of the mortgage or not It has been argued on behalf of the Appellant that the acts of the mortgagee in possession as a person of ordinary prudence for managing the mortgaged property also bind the mortgagor. Defendant No. 3 by creating a tenancy in favour of the Appellant acted as a man of ordinary prudence and the tenancy so created should not be put an end to after the extinguishment of the mortgage.;