BHANWARLAL Vs. HIBTULLAH

JUDGEMENT

(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.

(3.) IT is in these circumstances that the defendant has come up in second appeal to this Court.