DES RAJ OM PARKASH Vs. SHANKAR DASS

JUDGEMENT

(1.) The short facts relating to the civil appeal are as under:

(2.) The suit property was mortgaged by Respondent I, Shankar Das with budha Ram who is the father of defendants 1 to 4 (respondents 2 to 5 herein). The mortgage was for a sum of Rs. 6,000. 00 and it was a usufructuary mortgage in relation to the shop covered by this appeal. Budha Ram leased out the shop in favour of Shankar Dass mortgagor-plaintiff. In other words, there was lease back in favour of the mortgagor. The mortgagor has subleased it in favour of the appellant Des Raj 0m Parkash. The mortgagee obtained the decree against the mortgagor for eviction for non-payment of rent. That decree came to be executed. He took possession of the shop. At this stage, the appellant executed a rent-note in favour of the mortgagee. The mortgage came to be redeemed later on. Thereafter, the present suit came to be filed. The trial court and the court of first appeal held that the appellant would continue to be a tenant under the mortgage, as a whole, notwithstanding the rent-note executed by him. However, in the second appeal, the High court reversed the findings and directed redemption and consequential possession. Hence, the present Civil.

(3.) The only point for our consideration is, whether the judgment of the High court could be upheld. In attacking the findings therein, the learned counsel would seek to rely on two decisions i. e. All India Film Corpn. Ltd. v. Raja Cyan nath Jadavji Purshottam v. Dhami Navnitbhai Amaratlal. On the basis of those rulings it is urged, where the mortgagor has consented for the continuance of the tenancy of the appellant even after redemption, no eviction is possible at the instance of the mortgagor.