KAN SINGH, J. - (1.) THE second appeal before me raises the question whether on the execution of a usufructuary mortgage by the landlord in favour of a tenant the relationship of landlord and tenant will come to an end by virtue of express or implied surrender of the tenancy rights or it would be merely put in abeyance so that on the redemption of the mortgage by the landlord mortgagor the tenant mortgagee could yet claim to remain in possession by virtue of the Rent Control legislation.
(2.) IT is common ground between the parties that in respect of the suit shop situated at Nimbahera the defendant was a tenant of the plaintiff-respondent. The tenancy commenced some 30 years before the filing of the suit. However, on 25-10-57 the mortgage deed, Ex. 1 on record, was executed by the landlord in favour of the tenant for Rs. 4,000 -. IT was, inter alia, agreed that the mortgage would be redeemable after 7 years and that no interest would be chargeable for the amount advanced by the tenant to the landlord and that likewise no rent would be payable by the tenant to the landlord mortgagor. After the expiry of 7 years the mortgagor served a notice on the mortgagee demanding of him to take the mortgage amount and redeem the property. IT was also stated in the notice that the suit shop was required by the mortgagor for his bona fide personal necessity. As the mortgagee did not agree to redeem the property the suit for redemption was filed by the mortgagor Hibatullah Bhai in the court of the Civil Judge, Chittorgarh. IT was claimed that the plaintiff was entitled to have vacant possession of the suit shop. The suit was contested by the defendant-appellant. It was averred by him that the tenancy was intended to continue inspite of the mortgage and it was agreed that even on the redemption of the mortgage the defendant would continue in possession of the shop as a tenant. Protection of sec. 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, hereinafter to be referred as the "act", was claimed. The defendant thus took the stand that on account of the understanding between the parties the relationship of landlord and tenant that was put in abeyance during the currency of the mortgage revived on its redemption. The suit went to trial only on one issue namely, whether the plaintiff was entitled to have vacant possession of the suit shop on the redemption of the mortgage ? The plaintiff examined himself as P. W. 1 and further relied on the mortgage deed Ex. 1 and the notice Ex. 2 served by him on the defendant. He further relied on a letter Ex. 6 which was put to the defendant in his cross-examination. I will have occasion to refer to the terms of that letter at the appropriate place in the judgment. To continue the narration, in rebuttal one of the defendant Sagarmal came in evidence and he produced D. W. 2 Nanalal in his support. The learned Munsif, Nimbahera, who eventually tried the case as a result of the transfer of the case to his file, held that though the plaintiff was entitled to redeem his shop, he cannot get the actual physical possession of the same. The learned Munsif held that the relationship of landlord and tenant was not put an end to and after the redemption of the mortgage the defendant would be regarded as a statutory tenant within the meaning of the Act and could consequently claim protection of its provisions and was thus entitled to remain in possession. The learned Munsif, therefore, dismissed the suit. Aggrieved by the judgment and decree of the learned Munsif the plaintiff went up in appeal to the court of the District Judge, Partabgarh. The learned District Judge was of the view that the relationship of landlord and tenant had come to an end when the landlord made a usufructuary mortgage of the suit shop in favour of the tenant. In that event the tenant, according to the learned District Judge, will be taken to have surrendered his tenancy rights with the result that he cannot claim the protection of the provisions of sec. 13 of the Act. In the result, the learned District Judge allowed the appeal, reversed the judgment and decree of the learned Munsif and decreed the plaintiff's suit ordering that on the payment of the mortgage amount by the plaintiff he shall be entitled to get actual possession of the suit property from the defendant.
(3.) IT is in these circumstances that the defendant has come up in second appeal to this Court. Learned counsel for the defendant-appellant contended that in the circumstances of the case it cannot be said that the defendant-tenant had made a surrender of his tenancy rights by accepting the mortgage in his favour. He maintained that there was an agreement between the parties that even on redemption of the mortgage the tenant shall continue to remain in possession of the suit shop and the court below was in error in ignoring the same. Then learned counsel argued that the plaintiff had not pleaded any case of surrender of tenancy rights by the defendant in his plaint; on the contrary, he pleaded bona fide personal necessity evicting the defendant. In the alternative, learned counsel submitted that even if there be an implied surrender, for express surrender was not there, then such a surrender cannot be enforced by the Court as the tenant cannot contract out of the protective provisions under sec. 13 of the Act. Learned counsel took the position that in the present case the relationship of landlord and tenant can only be said to have been suspended and on the termination of the mortgage that relationship would revive with full force and tenant could legitimately claim the protection of sec. 13 of the Act; being a statutory tenant. Learned counsel invited my attention to a number of cases, such as, Kallu vs. Diwan (l), Lachhmandas vs. Heeralal (2), Jagmohan Ahir vs. Ram Kishan Misir (3), Boddana Ramudu vs. Sanyasi Naidu (4), C. Kuriminaidu vs. K. Padmanabham (5) V. B. Raju vs. K. Avatharam (6) and Kashi vs. Durga (7 ). He felt that a case of this Court reported as Dhulilal vs. Pannalal (8) had weighed with the court below and, therefore, he tried to distinguish that case on facts. Learned counsel for the respondent, on the other hand, tried to support the judgment of the learned District Judge. He referred me to Sardarilal vs. Ramlal (9), Velu vs. Lekshmi (lo), Meenakshi Amma vs. K. V. Narayani (11), Ram Rao vs. Pahumal (12), G. Valia Raja vs. T. Vareed (13), Kamlakar & Co. vs. Gulam Shafi (14), Lala vs. Bhagwan Dass (15) and Sachalmal Parasram vs. Ratanbai (16 ). ;