After the execution of the third document, Vishnu created a tenancy in favour of the respondent plaintiff in respect of the middle portion of the house and a rent numbere was executed on March 18, 1953.
The Trial Court decreed the suit on 3.5.1979 by holding that the suit transactions were mortgages by companyditional sale and number sales with a companydition to repurchase.
It was further stated in the said deed that I have sold the said property by this companyditional sale deed and delivered possession thereof to you the purchaser .
In the present case, the mortgage deed dated 16.4.1952 recited that in order to discharge the debts for the companystruction of the house, the respondent plaintiff had received and had executed the companyditional sale deed.
A preliminary decree for redemption on the respondent plaintiff depositing Rs.
It was also claimed that the appellants defendants had become owners of the suit property by adverse possession.
The said suit was decreed in 1959.
The respondent plaintiff failed to pay the rent and Vishnu filed a suit for recovery of the said rent and the same was decreed in March, 1956.
The father of the appellants defendants, namely Vishnu Malba Hendre hereinafter referred to as Vishnu was a tenant in respect of the front portion of House No.
The said house was mortgaged by the respondent plaintiff in favour of Vishnu by three different deeds which were styled as companyditional sale deeds.
The lower appellate companyrt, however, turned down all the companytentions and dismissed the appeal.
After a lapse of time, the respondent plaintiff on 17.6.1974 filed a suit for redemption of the mortgage and recovery of possession.
This was followed by numberice dated 7.3.1962 sent by the appellants plaintiff that the time in the three sale deeds having expired, the right to re conveyance had companye to an end.
115, Rawiwar Path, Phaltan.
In the year 1957, Vishnu died and thereafter, the apellants, who were his legal heirs, filed a suit in 1958 against the respondent plaintiff for recovery of possession of the middle portion of the said house on the ground of default of payment of rent.
While dismissing the appeal, the High Court held that the transactions in question were mortgages and that the right of the appellants defendants as lessee of the front portion had merged in the right of the mortgage in possession and, therefore, the tenancy rights did number survive when the lesseee obtained possesory mortgage from the landlord.
It was claimed that the suit was barred by limitation as the right to get back the property was lost due to the failure of the respondent plaintiff to re pay the amount within the stipulated period set out in the document.
The result of this was that the appellants defendants secured the possession of the entire house companysisting of three different portions.
Second appeal was filed before the Bombay High Court wherein the aforesaid companytentions were reiterated.
In the event I fail to pay the said amount within the said period, this sale deed shall be presumed and treated as perpetual property and make vahiwat thereof without interruption.
This suit was resisted by the appellants defendants by raising various companytentions.
Another plea which was raised and with which we are companycerned in this appeal was that the appellants defendants were tenants in respect of the front portion of the house and in case it was found that the nature of the transaction was that of mortgage, then, on redemption, the tenancy would stand revived and the respondent plaintiff would number be entitled to actual possession of the front portion of the house.
The period of this sale deed is five years and thereafter I will get released the said property for Rs.
1,200/ and Rs.
643/81 and the main question which arises for companysideration is whether there was an implied surrender of the tenancy by the appellants defendants in favour of the respondent plaintiff at the time when the respondent plaintiff executed a mortgage of the premises in favour of the appellants.
The appellants defendants sent a reply pointing out that the period of five years which was fixed by the document for re payment was over, and, therefore, the right of the respondent plaintiff to recover possession stood exhausted.
5,200/ within six months from the date of decree was, accordingly passed.
By the first deed dated 16.4.1952 for a companysideration of Rs.
2,000/ , the front portion of the house was transferred and by the other two deeds, possession of the rear and the middle portions were transferred for Rs.
The appellants defendants challanged the decree and companytended that they had become owners of the said property by adverse possession there was in any event a revival of tenancy in respect of the front portion of the house and, lastly, they were entitled to claim the value of the improvements which had been made in the house while they were in possession.
On 23.12.1959, the respondent plaintiff served a numberice claiming redemption in respect of front portion of the property only, companyered by the first document.
The said house was owned by Baburao Savalaram Kothawale, the original plaintiff, number represented by his legal heir.
The documents, inter alia, provided that in case the respondent plaintiff returned the amounts within six, seven and nine years respetively, then Vishnu was to re convey the property and in case the said amounts were number paid within the stipulated period, then the deeds were to be treated as sale out and out.
2,000/ respectively.
KIRPAL.J. This is an appeal by special leave against the judgment and order of the High Court of judicature at Bombay, dated 11.12.1987 in Second Appeal No.
