NEMICHAND Vs. ONKAR LAL

JUDGEMENT

(1.) This appeal arises from the judgment of the Rajasthan High Court dated April 24, 1986 in S.B. Civil Second Appeal No. 32 of 1986. The High Court, confirming the decrees of the Courts below, held that the appellant had surrendered his possession over the suit property as a lessee upon his lending money on the security of the very same property which was mortgaged to him by the borrower.

(2.) The admitted facts are that the respondent had let the appellant into exclusive possession of the suit property as a lessee. During the period of the lease, the appellant lent a sum of Rs. 5,000/- to the respondent on the security of the suit property which was mortgaged to. him by the respondent, as evidenced by the mortgage deed dated 19-3-1975. The deed provided that the mortgage was due to expire on 18-3-1980. Accordingly the respondent issued notice to the appellant of his intention to redeem the property. But the appellant refused to surrender possession of the property contending that he was entitled to retain it in his capacity as a lessee. Accordingly the respondent instituted the suit for redemption. All the Courts below, on construction of the mortgage deed, came to the conclusion that the appellant had surrendered his possession as a lessee on his entering into a new relationship with the respondent in terms of the deed of mortgage, and upon redemption of the mortgage, the appellant had no further right to retain possession of the property. The High Court held that the appellant had symbolically surrendered his possession as a lessee, and no rent was, therefore, payable by him under the lease during the period of the mortgage. On redemption of the mortgage, he had no further right or interest in the property and was no longer entitled to retain possession of the same.

(3.) Annexure 'A' is the English translation of the mortgage deed dated 19-3-1975 which reads:-