Judgment

SIKRI, CJI. :- This appeal by special leave is directed against the judgment of the High Court of Madhya Pradesh dismissing the appeal filed by the appellant before us. The relevant facts for the determination of the points raised before us are as follows :

2. Respondents Nos. 1, 2 and 3, who were the owners of the premises in dispute, mortgaged the premises in favour of respondent No. 4, with possession, vide two mortgage deeds dated December 5, 1947 and October 26, 1948, for the amounts of Rs. 12,000/- and Rs. 4,000/- respectively. The date of payment was October 8, 1952, but by a subsequent agreement dated November 18, 1952, this was extended. The agreement further provided as follows :

"The portion of the house in your side shall remain with you at a rental of Rs. 50/- per month. It was with you previously at Rs. 43/- per month. We shall not be responsible for any decrease or increase in the rental thereof. You shall have the right to let out the half portion of the shop on your side to any person at full rent..."

On May 1, 1958 respondent No. 4, the mortgagee in possession, filed a suit for foreclosure. During the pendency of this suit he let out the premises to the appellant at Rs. 55/- per month. It was provided in the rent agreement between the mortgagee and the appellant that "in case the owner of the house gets the house released from mortgage under us, then I shall get the house vacated for you and hand it over to you." On September 28, 1960, a compromise decree for redemption was passed. The mortgagors, in execution of the said compromise decree, sought to take possession of the premises in dispute, which had been rented to the appellant. The appellant s objections under O. 21 R 97, C. P. C., were ultimately disallowed by the High Court, in revision, on April 18, 1964. The appellant then filed the present suit under O. 21. R. 103, C.P.C. for a declaration that "the plaintiff (appellant) being the tenant of defendants Nos. 1, 2 and 3 (respondents) cannot be evicted unless eviction proceedings are taken against him under M.P. Premises Control Act." In the alternative, the appellant prayed for a declaration that "if the plaintiff is considered to be the tenant of deft. No. 4 even after the redemption decree the plaintiff cannot be evicted." He also prayed for a consequential permanent injunction. The Trial Court dismissed the suit. An appeal before the Additional District Judge also failed. As already mentioned, the second appeal before the High Court also failed.

3. The learned counsel for the appellant submitted that respondent No. 4, being the mortgagee in possession, had the right to let the premises in dispute both under S. 76 of the Transfer of Property Act, and under the agreement dated November 18, 1952. According to him, this act was an act of prudent management and was binding on the respondents Nos. 1, 2 and 3. He further contended that he was protected by the provisions of the Madhya Pradesh. Accommodation Control Act, 1961, and could not be evicted except in accordance with the provisions of that Act.

4. The points raised by Mr. Naunit Lal are concluded by the decision of this Court in All India Film Corporation Ltd. v. Raja Gyannath, 1969-3 SCC 79 = 1970-2 SCR 581 which decision was unfortunately not brought to our notice during the course of the hearing. In this case the facts were similar. A mortgagee in possession had let out the premises, which was a cinema house, and the lessee had further sublet the same, to sub-lessees. On redemption the purchaser of the interest of the mortgagor filed a suit for possession of the property from the head lessee and the sub-lessees. The sub-lessees claimed the benefit of East Punjab Urban Rent Restriction Act, 1949 (3 of 1949). In this High Court three points were raised. One of the points urged was whether the defendants were protected by the East Punjab Urban Restriction Act. This Court first considered the question; Did the tenancy create by the mortgagee in p