The acceptance of a usufructuary mortgage by a tenant from his landlord does not necessarily extinguish or merge the tenancy rights. The question of whether or not the tenancy is determined by implied surrender is a question of fact to be decided on the evidence.

K. S. SIDHU, J.

( 1 ) THIS second appeal by the defendant from the appellate Judgment and decree, dated, January 12, 1978, of the District Judge, Sawai Madhopur, in affirmance of the judgment and decree of the trial Court, dated. April 4, 1975, was admitted by Kudal, J. , in this Court on February 12, 1978, formulating a question of law as under : whether on the execution of a usufructuary mortgage by the landlord in favour of a tenant, the relationship of landlord and tenant will come to an end or it would be merely put in suspension so that on the redemption of the mortgage, the tenant mortgagee could remain in possession on the basis of the tenancy rights?.

( 2 ) THE material facts which are no longer in dispute may be shortly stated here. Ramji Lal and Murari Lal (hereinafter called the mortgagors), who instituted the suit for redemption, giving rise to this second appeal, are owners of the shop in dispute which has been in possession of Nand Lal the defendant-appellant, herein, since, 1943. To start with Nand Lal (hereinafter called the mortgagee), was given possession of this shop as a tenant on a rent of Rs. 8/-per month. On june 27, 1955, the mortgagee advanced Rs. 4500/- to the mortgagors by way of loan. The mortgagors executed a mortgage-deed on the even date, stating therein that the rate of interest agreed to by them was nine annas per cent per mensem, that they had delivered possession of the mortgaged shop to the mortgagee and that the mortgagee will retain possession and receive rents and profits accruing from this shop in lieu of interest. The mortgage-deed further recites that the mortgagee will be entitled to realise from the mortgagors the difference, if any, between the amount of monthly interest and the amount of monthly rent. The mortgagee also executed a separate deed on the even date mentioning therein that he had acquired possession of the shop as an usufructuary mortgagee, that a sum of Rs. 25/- per month as presumptive rent would be appropriated by him in lieu of interest, that if the market rent would fall below Rs. 25/- per month, notice thereof would be duly given to the mortgagors who would in that case, be liable to make up the difference between the amount of interest payable and such lower market rent, and that if the market rent would exceed Rs. 25/- per month, the mortgagee would have the option to retain possession on payment of enhanced market rent or deliver possession to a prospective tenant who may be willing to pay such rent and partly adjust the receipt of rent in lieu of interest.

( 3 ) ONE of the pleas raised by the mortgagee in answer to the mortgagors claim for redemption was that even if the mortgagors were to be allowed to redeem the mortgage in question, he would not be liable to be evicted from the shop in dispute because his leasehold rights as they obtained before the mortgage would revive on the redemption of the mortgage to provide him the necessary shield of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, against eviction by the mortgagors.

( 4 ) IT appears that the mortgagors learned counsel countered this plea with an argument that on the creation of the usufructuary mortgage on June 27, 1955, the mortgagees leasehold rights, as they obtained before the mortgage, merged in his mortgagee rights, and that thus the leasehold rights stood extinguished altogether. In the alternative, counsel appear to have argued that, in any case, the earlier lease determined by express or implied surrender by the mortgagee at the time of the creation of the usufructuary mortgage in his favour.

( 5 ) BY its judgment, dated, April 4, 1975, the trial Court held that it was proved in the facts and circumstances of this case that by accepting delivery of possession of the shop as a usufructuary mortgagee on June 27, 1955, and by executing a deed on the even date expressly stating therein that he would retain possession and, therefore, the usufruct of the shop, in l