( 1 ) THESE two Second Appeals arise out of the common judgment in two Civil Appeals Now. 55 of 1976 which arose out of the common judgment in Regular Civil Suits Nos. 136 and 137 of 1972 which were consolidated.

( 2 ) THE respondent is the auction purchaser of the two suit premises (equity of redemption which were mortgaged by the original owner Prabhatsinh with the present appellant No. 1 Amratlal Govindji in the years 1962 (ex. 24) and 1964 (ex. 25 ). The plaintiff contended that he had paid the mortgage debt to the defendant No. 1 the mortgagee and the mortgage has been redeemed and inspite of such redemption the defendants have continued in possession without any right title or interest and hence he prayed for a decree for possession against them.

( 3 ) THE defendants contended that they were the tenants of the suit premises (western and eastern portion respectively) prior to the creation of the mortgage in favour of defendant No. 1 and therefore they continued to be the tenants even after the redemption of the mortgage and they cannot be required to hand over their possession as tenants except in accordance with the provisions of the Bombay Rent Act. The trial court dismissed both the suits. However the lower appellate court has decreed both the suits.

( 4 ) IN Second Appeal No. 477 of 77 the following substantial questions of law have been formulated at the time of admission of the Second Appeal:"1 Whether upon redemption of the usufractuary mortgage the first appellant was entitled qua tenant as he was prior to the creation of the mortgage to the statutory protection and whether the respondent was therefore entitled in law to get only symbolical possession from him (the first appellant) and no decree could be passed for actual possession from him? 2 Whether upon the creation of the new relationship of a mortgage between the first appellant and the owner the tenancy rights of the first appellant were surrendered by operation of law or whether they were simply held in abeyance entitling the appellant to claim protection of his possession qua tenant upon redemption of the mortgagee"?

( 5 ) IN Second Appeal No. 478 of 1977 the following substantial questions or law have been formulated at the time of admission of the Second Appeal:"i Whether appellant inducted on the property by a previous mortgagee with possession and continued as such by the mortgage upon redemption is entitled to protection qua tenant upon the redemption of a subsequent mortgage under the provisions of the Bombay Rent Hotel and Lodging House Rates Control Act 1947 Whether on the facts and in the circumstances of the case the Second appellants lease is binding on mortgagor after redemption of the first appellants mortgage entitled him to protection qua tenant".

( 6 ) THE above questions arise on the following facts found by both the courts: The first appellant took western portion of the suit premises on lease as a tenant from the original owner Prabhatsinh and he resided therein with his mother and brother (defendant No. 2 ). Thereafter on 4/10/1949 the owner Prabhatsinh created a usufractuary mortgage in respect of the entire building in favour of one Chhotalal Premji for Rs. 2500. 00. On 2/12/1954 Prabhatsinh redeemed the mortgage and created another usufructuary mortgage of the entire building in favour of Koli Jadav Megha for Rs. 2500. 00 (Rs. 1500/- in respect of the eastern portion of Rs. 1000. 00 in respect of western portion ). On 16/11/1955 the widow of Jadav Megha sub-mortgaged the entire building for Rs. 2500. 00 by way of usufructuary mortgage to one Keshavlal Bhaishanker by mortgage deed ex. 64. Keshavlal Bhaishanker inducted appellant No. 2 Kantilal Govindji as a tenant in respect of the eastern portion at a monthly rent of Rs. 5. 00.

( 7 ) ON 22/01/1962 the entire mortgage was redeemed by Prabhatsinh. At that time the first appellant was a sitting tenant in the western portion and the second appellant was the sitting tenant