RAMA JADAM GUJAR Vs. NATHULAL

JUDGEMENT

(1.) STAPLES , A.J.C. 1. The appellant is the malguzar and lambardar of mauza Mundi in the Khandwa tahsil of the Nimar District, and he brought a suit for possession of the abadi site and for a mandatory injunction for removal of a structure upon that site. The suit was dismissed and an appeal preferred by the plaintiff was also dismissed by the Additional District Judge. The plaintiff has now preferred this second appeal. The only question to be decided is whether the landlord has a right of re-entry. The facts of the case are somewhat peculiar. The site in dispute was admittedly granted to a barber named Rama. Rama however executed a possessory mortgage deed, mortgaging his house and presumably also the site, in favour of the respondent in 1919 for Rs. 300. The mortgage contained a condition of sale. The mortgagee took possession in 1926, but in December of that year he again put Rama in possession, and it is contended that Rama is still in possession. The Courts below have found that the execution of a possessory mortgage is not by itself a transfer which entitles the landlord to take possession of the site, and, as Rama is still in occupation of the house in suit, the landlord has no right of re-entry.

(2.) I am clearly of opinion however that this view taken by the lower Courts is wrong. There is no doubt that a mortgage is a transfer and, although as held in Labhchand v. Daryasingh, (A.I.R. 1925 Nag 204) the fact that a house and site in the abadi has been mortgaged with possession would not give the landlord a right of re-entry as long as the original occupant had not finally parted with his rights, still, when the occupant has either finally parted with his rights or shown an intention of giving up all claims to redeem the property, then the transfer is complete and the landlord has a right of re-entry. For this view I would refer to the other case cited by the lower appellate Court Bhagwan v. Raghubir Dayal, (A.I.R. 1925 Nag 396), which appears to have been misunderstood by the Judge of that Court. In the present case there can be no doubt that, although Rama is actually in occupation of the site, he has clearly parted with all rights over it and is only a tenant of the mortgagee, the respondent Nathoolal,