ROSHANLAL Vs. BABOO LAL

JUDGEMENT

(1.) THIS is a defendant's second appeal directed against the judgment and decree dated 14th April, 1958, passed by the Civil Judge, Dholpur in a suit for possession and mesne profits.

(2.) THE controversy relates to a shop situate in Mohalla Talaia, Dashera Road Gothi, dholpur. Roshanlal, the defendant appellant, took this shop on rent on 25th June, 1350 on a rental of Rs. 10/- per month from Mst. Bashiran and others. On 8th february, 1951, Mst. Bashiran and others mortgaged this shop with Roshanlal. According to the terms of this mortgage-deed no interest was to be paid by the mortgagors to the mortgagee Roshanlal and he was no longer required tp pay any rent of the shop. It was further stipulated that when half the mortgage money was paid the mortgagee was to pay Rs. 5/- per month as rent and when the full mortgage amount was repaid the mortgagee was to restart paying Rs. 10/- per month as rent. On 25th September, 1954 Mst. Bashiran redeemed the shop and mortgaged this shop with some other property with Babulal and Rambharose for the sum of Rs. 3,500/ -. Baboolal and another instituted a suit for the possession of the shop which was in possession of Roshanlal and for mesne profits on several grounds. This suit was resisted by Roshanlal. The Munsiff Dholpur who tried the suit found that there was no agreement between Roshanlal on the one hand and baboolal and Rambharose on the other to the effact that the former will deliver possession of the shop to the latter, that there was no implied surrender on the part of Roshanlal and dismissed the plaintiff's suit. Baboolal and another preferred an appeal and the learned Civil Judge concurred with the finding of ths trial Court that no independent assurance was given by Roshanlal to vacate the shop in dispute but he held that inasmuch as Roshanlal became the mortgagee of the shop in suit by operation of law there was an extinction of the original lease and it was a case covered by Section 111 (d) of the Transfer of Property Act. Roshanlal has now come up in second appeal.

(3.) THE only point urged before me and which calls for consideration is whether on account of the mortgage-deed dated 8th February, 1951 between Mst. Bashiran and others on the one hand and Roshanlal on the other the relationship between them as of lessor and lessee came to an end and the lease stood determined. On behalf of the appellant it is contended that Roshanlal did not extinguish the tenancy rights residing in him by becoming a mortgagee. The tenancy rights remained in abeyance and revived when the land lady Mst. Bashiran redeemed the mortgage from Roshanlal. He placed reliance on Kallu v. Diwan, ILR 24 All 487; parasram v. Dharamchand, AIR 1935 Lah 522; Jyotish Thakur v. Tarakant Jha, air 1963 SC 605 and Dhulilal v. Pannalal, AIR 1963 Raj 110. The learned counsel for the respondent however placed reliance on the provisions of Section 111 (d) of the Transfer of Property Act and argued that the interest of the lesseei and the lessor in the entire shop became vested in Roshanlal and the lease came to be determined on execution of the mortgage by the land lady. Roshanlal became a trespasser and the subsequent mortgagee, therefore, became entitled to possession and mesne profits. He placed reliance on Velu v. Lekshmi, AIR 1953 trav-Co 584, Meenakshi Amma v. Kizhakki Valath Narayani, AIR 1957 Mad 212, abdul Gafoor v. Kunj Behari Lal, AIR 1957 All 346, Venkayya v, Venkata Subbarao, air 1957 Andh Pra 619 and Mehrban Khan v. Makhana, AIR 1930 PC 142.