Surrender of tenants right depends upon actual terms and conditions of mortgage transaction.

V. Ramaswami, J.

1. In order to appreciate the question of law that is raised in this writ appeal, we may notice a few relevant facts. The second respondent is the owner of two blocks of land; one measuring an extent of 1.32 acres and comprised in S. Nos. 57/182, 47/4, 56/1 and 55/2 in Siruvanur village, North Arcot Df. The other block is an extent of 2.02 acres and Comprised in S. Nos. 56/2, 56/3, 56/4, 56/6 and 250/2 in the same village. The appellant filed an application under Section 4(2) of the Tamil Nadu Agricultural Land Records of Tenancy Rights Act 10 of 1968, hereinafter referred to as the Act, for inclusion of his tenancy over these two blocks of lands in the approved records of tenancy rights relating to Siruvanur village. It was on the ground that under Ex. B10, dated 14.10.1971, the first block of land was leased to the appellant for a cash rent of Rs. 3,000 for a period of five years, which worked out of Rs. 600 per year and the second block under Ex. P11 for a period of five years, for a cash rent of Rs. 900 per year. This application was resisted before the Tahsildar on the ground that subsequent to these lease deeds, the landlady borrowed a sum of Rs. 5,925 from the tenant under a promissory note dated 12.4.1973, and on the same date, she executed what is styled as a varthamanam document in which it was stated that in lieu of interest payable under the promissory note, the appellant will hold the property under an oral usufructuary mortgage and enjoy the income from the properties in lieu of the interest payable on the promissory note. By reason of the execution of the promissory note and the varthamanam document, the relationship of the landlord and the tenant had ceased and the possession of the parties stood altered as that of mortgagor and mortgage and therefore the appellant was not entitled to get his name recorded as a tenant under the provisions of the Act. The Tahsildar, Thirukoilur, who was the Record Officer, Tenancy Rights, under the Act, accepting the contention of the landlady, held that there was no tenancy relationship between the appellant and the second respondent, that therefore he is not a tenant within the meaning of Sec2(8)(a) of the Act, and in that view, rejected the application. On appeal, the Revenue Divisional Officer, Tirukoilur who is the appellate authority held that the varthamanam letter was only the counter part for the promissory note dated 12.4.1973 and that the varthamanam letter did not supersede the tenancy and that therefore, the appellant was a tenant within the provisions of the Act. Accordingly, he allowed the appeal, set aside the order of the Record Officer and directed the appellant to be registered as a cultivating tenant in respect of both the blocks of lands. The landlady preferred a revision petition before the District Revenue Officer, South Arcot at Cuddalore, who by his order dated 15.2.1978, referred the order of the Revenue Divisional Officer and held that under Ex. B1 varthamanam letter, the second respondent had permitted the appellant to enjoy the property in lieu of interest and that changed the relationship between the parties and after the execution of Ex. B1, he was holding the property only as a mortgagee and not as a tenant. In that view, he allowed the appeal and set aside the order of the Revenue Divisional Officer. Thereafter the appellant filed W.P. No. 1057 of 1978. The learned single Judge of this Court dismissed the same by order dated 1.8.1970 holding that though the appellant was inducted into possession by reason of the two lease deeds, on the execution of the varthamanam letter Ex. B1, as a corollary to the promissory note Ex. P8, the possession of the parties stood altered from that of landlord and tenant to that of mortgagor and mortgagee. It is this view of the learned Judge that is canvassed in this writ appeal.

2. Mr. D. Raju, learned Counsel for the appellant, referred to a decision of the Supreme Court and a decision of the