V.P.TYAGI, J. - (1.) THIS special appeal under Section 18 of the Rajasthan High Court Ordinance 1949 is directed against the judgment of the learned Single Judge dated December 1, 1972 and it arises our of the following circumstances:
(2.) THE following facts are not in dispute between the parties. Plaintiff Hibtullah Bhai purchased a shop which was rented out to Bhanwar Lal. Sagarmal and Chandmal. The shop was situate in the town of Nimbahera. the tenancy in favour of the defendants appellants commenced some 30 years before cling of the present suit Hibtullah Bhai was in need of money and, therefore, he borrowed Rs. 4 000/ - from the defendants appellants after executing a mortgage deed Ex. 1 on 25th of October. 1957. It was agreed between the parties that the mortgagor shall not get the mortgage redeemed before 7 years of the execution of the mortgage deed and that during the continuance of the mortgage the landlord shall not pay any Munafa on the loan secured against ibis mortgage and the mortgagees who were the tenants of the shop shall not pay any rent to the mortgagor, There was one more stipulation in the mortgage deed that the mortgagor has transferred the possession of the mortgaged property to the mortgagees. On 24th October, 1967 a notice was served on the mortgagees by the mortgagor Hibtullah Bhai that the shop may be redeemed after the payment of Rs. 4 000/ - and the possession thereof may be transferred to the mortgagor otherwise the mortgagor shall be compelled to file a suit for redemption. It appeals that the mortgagees were not prepared to part with the possession of the mortgaged property and therefore, a suit for redemption was filed by the mortgagors in the court of Civil Judge, Chittorgarh praying that a decree for redemption of the mortgaged property may be passed after the payment of the mortgage amount and that the defendants be directed to handover the possession of the mortgaged property to the plaintiff.
(3.) THE factum of mortgage was however admitted by the defendants mortgagees but this prayer of the plaintiff mortgagor was contested by the mortgagees that the mortgagor was entitled to get the possession of the mortgaged shop from the mortgagees because of the tenancy rights which the mortgagees enjoyed prior to the shop being mortgaged with them. The case was tried by the learned Munsiff. After the trial court passed a decree for redemption of the mortgaged property but as regards the possession it was held that the plaintiff mortgagor was not entitled to pet the vacant possession of the mortgaged property because of the tenancy rights of the mortgagees. On appeal the learned District Judge Partabparh modified the decree of the trial court and directed that on the payment of the mortgage amount by the plaintiff, he will be entitled to get the actual possession of the said property from the defendants A second appeal was preferred in the High Court which was heard by Kansingh. J. The learned Judge after hearing the parties at length dismissed the appeal of the mortgagees and held that it was a case of implied surrender of tenancy in favour of the landlord by the tenants and, therefore, after such a surrender the tenants were not entitled to any protection under the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. The learned Judge however considered it to be a fit case to grant leave to file an appeal under Section 18(2) of the Rajasthan High Court Ordinance, 1949 It is in this manner that this appeal has came before us.;