A mortgagee cannot confer a better title on a tenant than he himself has, and a tenancy created by a mortgagee during the subsistence of the mortgage will terminate upon redemption of the mortgage unless the mortgagee has acted as a person of ordinary prudence in inducting the tenant.

M.L.Bhat, J.

1. The petitioner challenges the order of respondent No. 1 whereby he has upheld the order of the respondent no. 2.

2. The facts giving rise to this petition can be put in a breif compass.

The petitioner claims to be a tenant of one Tej Bahadur who was mortgagee of some residential property in Bareilly. The mortgagor, Chandra Bahadur, Respondent no. 3, herein seems to have mortgaged his residential property to Tej Bahadur (since dead), who is represented by respondents no. 4 and 5 in the writ petition, in lieu of Rs. 3000/-. The mortgage deed was executed on 12-5-1972 and the period of mortgage was three years. The petitioner avers that the mortgagor became tenant of the mortgagee. The mortgagee, therefore, had filed a suit for ejectment and recovery of arrears of rent against the mortgagor and against the petitioner, who was held by the trial court as sub-tenant of the property. The petitioner tenant thereafter filed a civil revision No. 178 of 1976, which was decided on the basis of a compromise on 15-2-1977 by the court of the District Judge, Bareilly. The petitioner was held to be a tenant and not a sub-tenant of the mortgagor with effect from October, 1975. The relief of ejectment was given up. The mortgagor was not a party to the compromise, which was arrived at between the mortgagee and the petitioner.

3. The mortgagor, Chandra Bahadur, filed an application under section 83 of the Transfer of Property Act in the Court of Munsif City, Bareilly against the mortgagee and the petitioner. The said application came to be registered as Misc. Case no. 93 of 1979. The mortgagor prayed that Rs. 3000/- be got deposited and the mortgagee be directed to hand over vacant possession of the mortgaged property to the mortgagor. The mortgagee contended in the trial court that he was ready to deliver possession to the mortgagor provided he was given Rs. 3000/- which he had advanced as mortgage money to the mortgagor The petitioner-tenant seems to have contested the suit on various grounds. The application under Section 83 of the Transfer of Property Act was, however, allowed and a direction was given to deliver vacant possession of the mortgaged property to the mortgagor.

4. Against the aforesaid order of the Munsif a revision was taken before the District Judge which came to be decided by the VI Additional District Judge, Bareilly. The revision was dismissed and the order of the trial court allowing the application under Section 83 of the Transfer of Property Act filed by the mortgagor was upheld. AGAINST the said order the present writ petition is filed, inter-alia, on the following grounds :-

(a) That the petitioner-tenant was entitled to the benefits of Section 76 (a) of the Transfer of Property Act and he is entitled to continue his possession even after the redemption of mortgage. (b) That the petitioner was declared as tenant by the competent Civil Court in another litigation and, therefore, that finding operates as res judicata in an application under Section 83 of the Transfer of Property Act (c) That the application under Section 83 of the Transfer of Property Act was not a suit, therefore, delivery of possession of the mortgaged property could not have been ordered by the courts below in favour of the mortgagor. (d) That the application under Section 83 of the Transfer of Property Act was not maintainable because the payment was not made within the period for which mortgage had been created. The order of Court below is said to be illegal.

In his counter-affidavit the mortgagor has stated that the petitioner was a tenant of the mortgagee. It is stated that the mortgagor was in possession of the mortgaged property till June, 1973 and when he vacated the occupation of the mortgaged property, the same was let out to the petitioner by the mortgagee Tej Bahadur. It is stated that the petitioner was never sub-tenant of the mortgagor. Other assertions raised by the petitioner are denied.

5. Learned counsel, for the pe