V.P. Tyagi, C.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 & 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.
3. 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.
4. 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.
5. Before we consider the merits of the arguments advanced before us, we would like to mention that before the property was actually mortgaged and the mortgage-deed Ex. 1 was executed on 26th October, 1967, the parties bad entered into an agreement (Ex 6) Kartik Bud 8 St. year 2024 which was nothing but an agreement on behalf of the tenant mortgagees to advance Rs. 4000/- against the security of the mortgage to be executed by the landlord later on. In this letter it was specifically mentioned that the period of mortgage will be 7 years and that after the lapse of this period the mo rtgagees shall handover the possession of the shop to the mortgagor and that the mortgagees shall not charge any interest and the mortgagor shall no; realise any rent of the property.
thjh fe;kn lkr dh dhuh eqnr gks oklq jde ysg uh nqdku viuh lqijn dj nsosxk rFkk jde dh c;kth ugh o nqdku HkkMks ugh
This letter was put to Sagarmal when he entered into a witness box and it was admitted to have been executed by him.
6. The main argument of the learned Counsel appearing on behalf of the appellants is that by taking a mortgage of a property from the landlord, which was already rented out to the tenants, there would be no implied surrender of rights of tenancy and the effect of such a mortgage on the tenant's rights would be merely that they would be in abeyance. When the landlord redeemed the mortgage, the parties would revert to their former position and the landlord would not be entitled to get the possession of the shop except by ejecting the tenant under the provisions of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. In support of this plea reliance has been placed by the learned counsel on Kalu and Anr. v. Diwan ILR (1902) 24 All. 487, Kashi v. Durga 1911-12 Ind. Cases 734 Nag. Boddana Ramudu and Ors. v. Sasapu Sanyasi Naidu and Anr. AIR 1941 Mad. 97, Cheekati Kuriminaidu and Ors. v. Karri Padmenbbam Bhukra and Ors. : AIR1964AP539 , Varda Bongar Raju v. Ktrthaii Avatharam and Ors. : AIR1965AP86 , Jagmonan Ahir v. Ramkishan Misir AIR 1936 Oudh. 322, Lachmandas and Ors. v. Heeralal : AIR1966All323 , M. Mallikaranjunaiah v. Shivanna and Anr. AIR 1973 Mya. 40, Patel Atmaram Nathudas and Ors. v Patei Babubhai Kashavlal : AIR1975Guj120 and Jyotish Thakur and Ors. v. Parkant Jha and Ors. : AIR1963SC605 .
7. Learned Counsel on behalf of the respondents however on the other hand urged that after the property leased out is mortgaged by the lessor with the lessee, then the relationship of a usufructuary mortgagee and mortgagor is incompatible with the relationship of the lessor and the lessee and the rights of the landlord and the tenant are automatically determined by the implied surrender. He also urged that the intention of the parties that the tenants wanted to surrender their lease is in favour of the landlord by taking the usufructuary mortgzgee for a period of 7 years, is obvious from the document Ex 6 and therefore, he urged that the circumstances of this case clearly signify the intention of the parties at the time of the execution of the mortgage deed that they did not want to keep the relationship of the landlord and the tenant intact and their rights of tenant could not revive after the mortgaged property was redeemed by the landlord, la support of this contention reliance has been placed by the learned Counsel on Velu v. Lakshmi and Ors. AIR 1953 T(sic), Konijeti Venkavya and Anr. v Thammana Peda Venkata Subbarao and Anr. AIR 1957 M.P. 619, Meenakshi Amma v. Kijzhakke Valath Narayani and Ors. : AIR1957Mad212 , Godasankara Veha Raja v. Tharappan Vareed : AIR1961Ker293 , Sardarilal v. Ramlal and Ors. AIR 1962 Punj. 48, Ramrao Govindrao Akolker v. Pabumal Prsuram Singhi : AIR1963MP296 Dhulilal v. Pennalal ILR 1963 13 Raj. 568 and Lala Devi Singh and Ors. v. Bhagwan Dass Badlu Ors. AIR 1972 Del. 175.
8. The learned Single Judge went through the authorities cited before us very carefully and after close scrutiny of there rulings in the light of the language of the mortgage-deed Ex. 1 and the letter Ex. 6, he was definitely of opinion that it was a case of implied surrender of tenancy rights by the tenant mortgagees and, therefore, after the redemption of the mortgage the tenancy rights could not revive.
9. In our opinion this question whether the tenants before actually executing the mortgage deed had impliedly surrendered their tenancy rights in favour of the landlord, is purely question of fact and it can be determined only on the circumstances then prevalent and the way the parties agreed to deal with each other. The intention can be gathered from the documents executed by the parties at the time when the mortgage deal bad taken place. It will, therefore, be necessary to closely examine the two documents Ex. 1 and Ex. 6 to find out whether there was actually an intention on the part of the tenant mortgagees to surrender there tenancy rights is favour of the landlord mortgagor.
10. Ex. 6 is a very crucial document to find out the intention of the parties. It may be mentioned here that Ex. 1 was executed after a few days of the writting of the letter Ex 6 and it was done in continuation of the agreement that was entered into between the parties while documents Ex. 6 actually came into being. In this document it was specifically mentioned that the shop rented out to the tenants trial be mortgaged against the debt of Rs. 4, 000/- with the tenants by the landlord and the mortgage shall continue for a period of 7 years. The landlord could not redeem the property before the period of 7 years mentioned therein. It was also agreed between the parties that after the payment of the mortgage debt by the mortgagor after the lapse of 1 years, the mortgagees shall handover the possession of the shop to the landlord mortgagor. Another condition of the mortgagees was that during the continuance of this mortgage, the mortgagees shall not pay any rent to the mortgagor and that the mortgagor shall not pay to the mortgagees any interest on the amount advanced to bun. The condition of handing over possession to the landlord mortgagor by the tenants mortgagees after the shop was redeemed specifically throws a great deal of light on the intention of the parties. This makes it clear hat the tenors mortgagees had agreed that the tenancy shall come to an end and will do continue as soon as the mortgagees into existence. Ex.1 which was executed a few days later in pursuance of this letter Ex. 6 though does not specifically mention that the possession of the property shall be handed over by the tenants mortgagees to the landlord mortgagor after the property was redeemed still there is no intention expressed to the contrary by the parties that the parties did not want to stick to the terms of the agreement in pursuance thereof the deed Ex 1 who executed and, therefore, it is difficult now for the tenants mortgagees to take a somersault and say that they wanted to keep the tenancy to continue Sagarmal was examined as a witness on behalf of the defendant He has accepted the execution of the document he did not stick to the terms thereof & that it was agreed that after the redemption, the property will remain in possession of the tenants mortgagees. Hibtulleh has been examined as P.W 1 but no cross examination has been directed on this point that the parties had changed their terms of agreement mentioned in Ex. 6. we cannot place reliance on the testimony of Sagar Mai DW 1 about the fact that the terms of agreement were altered at the time the mortgage-deed was actually executed by the mortgagor. In this view of the matter we are of opinion that it is not a case of implied surrender but the documents speak of an express surrender of tenancy rights by the tenants in favour of the landlord in case the property was mortgaged under an usufructuary mortgage with the tenants which was ultimately done by the landlord in favour of the mortgagees. In view of this finding we feel we need not go into the question of the effect of the-implied surrender of the rights of the parties and discuss the divergent views expressed by different high courts in the authorities relied upon by the parties.
11. It wan next urged by learnt d counsel for the appellant that in view of the provisions of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, the landlord cannot get the tenant evicted unless the conditions mentioned in the said provision of law are fulfilled. This argument in our opinion is not available to the appellants because the tenant can seek protection under the provisions of the said Act only when the tenancy rights, exist. The question of revival of the tenancy rights in view of the fact that the tenants had expressly surrendered their tenancy rights in favour o the mortgagor by executing a document Ex. 6, does not arise and therefore no protection can be sought by him as no relationship of tenant and landlord actually existed between the mortgagor and mortgagees at the time when the property was redeemed by the landlord mortgagor.
12. An attempt was made by the learned counsel for the appellants to argue that the document Ex. 6 was not made the basis for the suit therefore it cannot be admitted in evidence because the mortgagees appellants could not adduce any evidence to explain and prove the fact that really they did not intend to surender the tenancy in favour of the learned mortgagor. We regret we cannot accept this contention of Mr. Bhandari at this stage specially when no such stand was taken by the parties when Ex 6 was produced in evidence by the mortgagor. The execution of the document has not been denied by the tenant mortgagees Mr. Bhandari urged that no opportunity was given to his clients to show that the mortgagees had resiled from the terms & conditions incorporated in document Ex 6. He therefore prays that case may be remanded to afford the appellants an opportunity to show that the tenancy was not expressly surrendered It has not been made cleat when Sagar Mal came in the witness box as to in what respects the mortgagees had gone back on the terms and conditions mentioned in document Ex. 6 The suit was filed as back as in the year 1967. It will not foe in the interest of justice to remand the case as prayed by Mr. Bhandari to enable the appellants to adduce further evidence to show that the mortgagees when Ex. 1 was executed did not stock to the terms of Ex. 6 and therefore it h not open for the defendants at this stage to say that the parties had expressly resiled from the terms of Ex. 6, This argument cannot be accepted because Sagarmal DW I did not specifically depose when he entered the witness box that the condition of handing over the possession of the shop when it was redeemed was expressly waived by a mutual agreement between the parties. We, therefore, cannot accept this argument of Mr. Bhandari.
13. The result is that the special appeal fails and it is hereby dismissed with costs.