JUDGMENT 1. This is a second appeal filed by the defendant under section 100 of C.P. Code against the impugned judgment/decree, dated 2.8.1999, passed by learned 1st Additional District Judge, Khargone (West Nimar) in C.A. No. 5-A of 1998, which in turn arises out of Civil Suit No. 11-A of 1982, decided on 28.1.1977, by civil Judge, Class II, Khargone. It was to begin with admitted for hearing only on first two substantial questions of law on 24.1.2000. However, at the time of final hearing of this appeal, this Court felt that some more substantial questions of law arise in appeal. Accordingly, by invoking powers under section 100(5) of C.P. Code this Court at the instance of the appellant by reasoned order, dated 21.10.2002 and again by order dated 11.3.2003 framed substantial questions 3 to 8. This is how these substantial questions of law came to be framed i.e. two on 24.1.2000 and remaining on 21.10.2002 and 11.3.2003 : "1. Whether in the facts and circumstances of the case the findings of the first appellate Court on the point of genuine need of the plaintiff-respondents, is perverse, as arrived at in total disregard of objective facts required to prove the alleged need? 2. Whether in the facts and circumstances of the case the Courts below erred in not considering the entire joint family property for availability of alternative accommodation for starting the business of plaintiff's major son Promod Kumar? 3. Whether lower appellate Court was justified in holding that consequent upon the payment of mortgage money by Ushabai redeeming the mortgage (Ex. P-1), the tenancy between the parties revived? 4. Whether, finding of lower appellate Court that the mortgage stood redeemed is sustainable with reference to facts? 5. Whether, in the facts of the case, it could be gathered that it was a case of surrender of tenancy rights on execution of mortgage? 6. Whether, plaintiffs were entitled to file a suit for eviction on the ground covered under section 12(1) of the Act or their remedy was to claim possession on the strength of their title? 7. In view of the finding that mortgage stood redeemed, whether decree for eviction can be upheld on the basis of plaintiff's title, as mortgagors and whether there is any material to sustain such decree? 8. 7. In view of the finding that mortgage stood redeemed, whether decree for eviction can be upheld on the basis of plaintiff's title, as mortgagors and whether there is any material to sustain such decree? 8. Can a decree for eviction passed under the provisions of the M.P. Accommodation Control Act be confirmed on the basis of title if there is a material to sustain it ?" 2. One Madhav Rao was the original owner of the suit accommodation which is situated in Khargone Town. He let out the suit house to one Balkrishna on a monthly rent of Rs. 50/- on 1.12.1950. Later on, a Kirayanama was also executed inter se parties on 24.11.1985. On 3.3.1964, Madhav Rao fell in need of money. He, therefore, took a loan of Rs. 15,000/- from Balkrishna and executed a mortgage deed dated 3.3.1964 (Ex. P-1) in favour of two sons of Balkrishna, namely, Vijay Krishna and Shyam Sunder mortgaging the suit house. Madhav Rao then effected partition of his several properties including the suit house which fell to the share of his one son Maheshchandra. This is how Mahesh Chandra became owner of suit house. On his death, present plaintiffs who are widow, and two sons of Mahesh Chandra succeeded to suit house and became owners. In the meantime, Madhav Rao also expired. 3. The plaintiff claiming to be the owners and landlords of the suit accommodation filed a suit out of which this appeal arises against the 2 sons of late Balkrishna for their eviction from the suit accommodation. It was averred that plaintiffs had on 25.6.1982 served notice on the defendants for redemption of mortgage by tendering the mortgage money and on satisfying the entire money, got the mortgage redeemed in plaintiff's favour on 8.6.1982. It was averred that plaintiff called upon the defendants to vacate the suit accommodation as the same was needed for bona fide requirement of plaintiff's one son - Pramod for doing business. It was averred that defendants have also created a sub-tenancy by parting away of the suit house in favour of one firm called Vijay Krishna Bal Krishna. It was averred that plaintiff called upon the defendants to vacate the suit accommodation as the same was needed for bona fide requirement of plaintiff's one son - Pramod for doing business. It was averred that defendants have also created a sub-tenancy by parting away of the suit house in favour of one firm called Vijay Krishna Bal Krishna. Plaintiff, thus, sought eviction of the defendant from the suit accommodation on two grounds namely, bona fide need of Pramod for doing business under section 12(1) (f) of the M.P. Accommodation Control Act and sub-letting of the suit house to one firm falling under section 12(1) (b) of the Act. The defendants denied existence of both the grounds pleaded by the plaintiff for eviction. It was also alleged that the suit under the rent law is not maintainable because there does not exist anymore relationship of landlord and tenant between the parties after the execution of mortgage deed (Ex. P-1). It was also denied that plaintiffs redeemed the mortgage by paying the mortgage money. Parties then led evidence. The trial Court held that mortgage has not been redeemed, that no case for bona fide need as contemplated under section 12(1) (f) is made out, that no case of subletting as contemplated under section 12(1) (b) is made out. However, the trial Court granted decree for mesne profit at the rate of Rs. 300/- per month against the defendants. It is against this decree, plaintiffs as also the defendants filed appeals. So far as plaintiffs were concerned, they contended in their appeal that they are entitled for an eviction decree on two grounds taken in the plaint, whereas the defendants in their appeal contended that no decree for mesne profit at the rate of Rs. 300/- per month could have been passed and that suit should have been dismissed in its entirety. By impugned common judgment, the learned first appellate Judge allowed both the appeals. So far as defendants' appeal was concerned, the first appellate Court set aside the decree granting mesne profit at the rate of Rs. 300/-. So far as plaintiff's appeal was concerned, it was also allowed but in part resulting in grant of eviction decree on the ground falling under section 12(1) (f) ibid. It was held that plaintiffs require the suit accommodation for the bona fide need of plaintiff's son Pramod. 300/-. So far as plaintiff's appeal was concerned, it was also allowed but in part resulting in grant of eviction decree on the ground falling under section 12(1) (f) ibid. It was held that plaintiffs require the suit accommodation for the bona fide need of plaintiff's son Pramod. The ground under section 12(1) (b) was negatived. It was also held that since plaintiffs had redeemed the mortgage by paying mortgage money to the defendants, the earlier tenancy had again revived and has come into existence entitling the plaintiffs to seek defendants eviction on any of the grounds enumerated under section 12(1) of the Act. It is against this judgment, the defendants have come up in second appeal. As stated supra, the appeal was admitted for final hearing on aforementioned substantial questions of law which were framed on two occasions. 4. Heard Shri G.M. Chafekar, learned senior counsel with Ku. V. Kasrekar, learned counsel for the appellants and Shri S.K. Pawnekar, learned counsel for the respondents. 5. Learned counsel for the appellants (defendants) while placing heavy reliance on a law laid down by the Supreme Court in the case of Shah Mathuradas v. Nagappa reported in AIR 1976 SC 1565 in the first place contended that on proper interpretation of term contained in Ex. P-1 i.e. mortgage deed, a clear case of total sunender of tenancy has been made out. Learned counsel maintained that the moment, parties executed the mortgage deed, the tenancy disappeared in the sense that parties intended for giving up of their tenancy rights and what emerged between the parties was a new relationship of mortgagor and mortgagee only. It was his submission, that once it is held that mortgage stood redeemed, the earlier tenancy rights did not revive automatically because they were expressly abandoned by the parties for all time to come by executing a mortgage deed. It was his submission that in a situation like the one, where the tenancy rights are not revived even after redeeming the mortgage the suit under the tenancy laws is not maintainable but the remedy of the plaintiffs lie in filing suit as mortgagor on the strength of title for claiming possession. It was his submission that in a situation like the one, where the tenancy rights are not revived even after redeeming the mortgage the suit under the tenancy laws is not maintainable but the remedy of the plaintiffs lie in filing suit as mortgagor on the strength of title for claiming possession. Learned counsel contended that since the suit out of which this appeal arises was essentially a suit based on the strength of relationship of landlord and tenant between the parties, the same was not maintainable and as consequence the decree for eviction passed under section 12(1) (f) of the Act is totally without jurisdiction. This in substance, was the . submission of learned counsel for the appellants. In reply, learned counsel for the respondents contended that no case for interference in the impugned judgment is called for. In the second place, he contended that it is not a case of sunender of tenancy on execution of mortgage deed as contended by the defendants (appellants) but it was a case where tenancy was kept in abeyance so long as the mortgage was not redeemed. Learned counsel contended that no sooner the mortgage was redeemed, the tenancy which was in abeyance got revived thereby entitling the plaintiff to sue for eviction on any of the grounds enumerated in section 12(1) of the Act. Learned counsel then further contended that on a proper interpretation of mortgage deed (Ex. P-1), it does not make out a case of surrender but it makes out a case of revival of tenancy. Learned counsel also contended that in case if this Court comes to a conclusion that a case of surrender of tenancy is made out, even then, the decree on the strength of plaintiffs title can be maintained. 6. Having heared the learned counsel for the parties at length and having perused the record of the case, I am inclined to allow the appeal and dismiss the suit. 7. The real question that arises for consideration in this appeal is whether parties intended for surrender of tenancy rights while executing a mortgage deed (Ex. P-1) or whether they intended to keep the tenancy rights in abeyance so long as the mortgage in relation to suit house was in force? 7. The real question that arises for consideration in this appeal is whether parties intended for surrender of tenancy rights while executing a mortgage deed (Ex. P-1) or whether they intended to keep the tenancy rights in abeyance so long as the mortgage in relation to suit house was in force? In other words, the question that arise for consideration is whether on payment of mortgage money by the plaintiffs the relationship of mortgagor and mortgagee continued for accomplishing redemption of mortgage or relationship of landlord and tenant got revived ? 8. The leading case of Supreme Court on this issue is reported in the case Shah Mathuradas v. Nagappa (AIR I976SC 1565). It is in this case their lordships of Supreme Court while interpreting the terms of mortgage deed which fell for consideration, laid down the test as to in which conditions, a case of surrender of tenancy should be held to be made out and/or a case of revival of tenancy is made out. That was also a case between landlord and tenant where landlord had executed a mortgage deed in tenants favour. Their lordships on interpretation of the terms in the mortgage deed came to a conclusion that incorporating such terms clearly shows that parties really intended to surrender the tenancy rights. In the opinion of their lordship, some of the terms incorporated in the mortgage deed were found inconsistent with the case of retention of tenancy rights and their insertion in the deed made out a case of surrender of tenancy rights, such as -- (1) right given to tenant (mortgagee) to sublet, (2) right to get the repairs done, (3) nature of possession to be recognised under the mortgage deed, etc. 9. This is what their lordships held in para 11, 12, 13, 14 and 15 in the aforesaid decision : 11. The Deed of Mortgage shows these features indicating that there was surrender of tenancy and the appe11ant was only a mortgagee. The High Court found that there was a surrender of tenancy right. No particular form of words is essential to make a valid surrender. A surrender may be oral. A surrender may be express although delivery of possession is necessary for surrender in the facts and circumstances of a given case. In the present case, delivery of possession was immediately followed by a redelivery of possession of the appellant as mortgagee. No particular form of words is essential to make a valid surrender. A surrender may be oral. A surrender may be express although delivery of possession is necessary for surrender in the facts and circumstances of a given case. In the present case, delivery of possession was immediately followed by a redelivery of possession of the appellant as mortgagee. The Mortgage Deed establishes beyond doubt that the effect of the Deed was inconsistent with the continuance or subsistence of the lease because the parties themselves stipulated that the lease was to exist only upto 6 November, 1953. On the redemption of the mortgage the respondent had a right to recover possession both on the terms of the mortgage deed and under section 62 of the Transfer of Property Act. 12. The second feature in the Mortgage Deed is that the appellant was given power to sub-let. Section 15 of the Bombay, Rents, Hotel and Lodging House Rates Control Act, 1947 as it stood in 1953 forbade any sub-letting. In 1959 the words but subject to any contract to the contrary were introduced into the said section 15, with the result that in the absence of the contract to the contrary, the tenant is not to sub-let or transfer. Before 1959 there could be no subletting. In the Mortgage Deed, there is provision for sub-letting. The provision for sub-letting shows that the character of tenant is lost. 13. Third, the mortgagor is to do repair works and is also to undertake repaIrs. 14. Fourth, the possession was to be under the agreement. 15. Though the Mortgage Deed was made on 21 May, 1953, the tenancy was continued till about 7 November, 1953. The possession of the appellant as mortgagee was confirmed from 7 November, 1953. This is rightly held to be unequivocal conduct showing that no tenancy was to exist from 7 November, 1953 but the relationship was that of mortgagor and mortgagee. If the intention of the parties was to revive the tenancy there was no necessity of a term that the appellant might let out the property to anyone. 10. It is in the light of the aforementioned law laid down by the Supreme Court, the case in hand need to be examined. 11. If the intention of the parties was to revive the tenancy there was no necessity of a term that the appellant might let out the property to anyone. 10. It is in the light of the aforementioned law laid down by the Supreme Court, the case in hand need to be examined. 11. Coming to the facts of the case, when I compare the conditions incorporated in Exhibit P-l (mortgage deed) with that of the conditions which fell for consideration in the case of Shah Mathuradas (supra), I find remarkable similarity in the conditions. In exhibit P-1 parties have in categorical terms provided (original are in Hindi) that: "1. Tenant (defendant) has been placed in possession in his capacity as mortgagee in the suit house. 2. Plaintiff will obtain possession of suit house after redeeming the mortgage i.e. by paying the entire money. 3. tenant (defendant) will not pay any rent and landlord will not pay any interest. 4. tenant will be free to sublet to any other person. 12. In my considered opinion, aforementioned 4 conditions in exhibit P-1 makes out a case of express surrender of tenancy rights by the defendant (tenant). A right to remain in possession pursuant to mortgage deed as mortgagee, a right to sublet given to mortgagee are some of the material conditions which are inconsistent with the retention of tenancy rights. On the other hand, they go to prove the surrender of tenancy rights for all time to come. 13. A creation of tenancy and/or its surrender is a matter of contract. It can be either express or implied. When it is reduced in writing, the intention of the parties can be gathered by interpreting the terms of the deed. Section 111(e) and (f) of the Transfer of Property Act clearly empowers for express and implied surrender of lease as one of the mode for determination of tenancy. Once, the lease is determined by express surrender then it comes to an end. It can be revived only by fresh contract of tenancy. 14. I am, therefore, inclined to hold on the basis of conditions contained in exhibit P-1 that a clear case of surrender of tenancy has been made out in favour of defendant. Once, I record this finding then in such eventuality, no suit under section 12(1) of the Act could be filed for claiming eviction of the defendants/tenants. 14. I am, therefore, inclined to hold on the basis of conditions contained in exhibit P-1 that a clear case of surrender of tenancy has been made out in favour of defendant. Once, I record this finding then in such eventuality, no suit under section 12(1) of the Act could be filed for claiming eviction of the defendants/tenants. In other words, effect of surrender of tenancy resulted in taking away of the right of the landlord to enforce the tenancy rights which no longer survived. The only remedy then available to the landlord was to fall back upon his title as mortgagor and file a suit for redemption of mortgage and claim possession of the suit house from the mortgagee on the strength of mortgage deed (Ex. P-1). 15. Learned counsel for the respondents made attempt to contend on the strength of substantial questions of law framed supra that the impugned decree though passed under the provisions of rent laws (section 12(1) (f) of the Act) can be upheld/sustained by this Court as a decree for possession on the strength of mortgage deed (Exhibit P-1). I am not inclined to accept this submission for several reasons. In the first place, it was not a suit based on Exhibit P-1 i.e. mortgage deed', but it was a suit based on tenancy rights. Secondly, the defendants were not sued in their capacity as mortgagee but they were sued in their capacity as tenants and that too as legal representatives of original tenant Bal Krishna. Thirdly, it was essentially a suit filed treating the relationship between the parties to be that of landlord and tenant and on the strength of grounds contained in section 12(1) (b) -- subletting and 12(1) (f) bona fide need of the Act. Fourthly, no such alternative pleadings and prayer was made in the plaint, or in the Courts below, nor any such finding was invited from the Courts below. In view of these legal infirmities which are apparent on the face of record, it is not possible for this Court to uphold the eviction decree passed under section 12(1) (f) of the Act as a decree for possession on the strength of Exhibit P-1 i.e. mortgage deed. In view of these legal infirmities which are apparent on the face of record, it is not possible for this Court to uphold the eviction decree passed under section 12(1) (f) of the Act as a decree for possession on the strength of Exhibit P-1 i.e. mortgage deed. It will amount to changing the very nature of the suit at the second appellate stage and that too without there being any cross objection or appeal filed by the respondents/ plaintiffs. 16. In my opinion, therefore, plaintiffs had no right to file a suit for defendants eviction as a tenancy suit under the provisions of M.P. Accommodation Control Act. The remedy of plaintiffs in this case was to file a suit on the strength of mortgage deed (Exhibit P-1) in his capacity as mortgagors for redemption of mortgage and for possession of the suit house. In other words, the moment parties entered into a transaction of mortgage on 3.3.1964, the relationship of landlord and tenant which had till then existed inter se parties came to an end and it then became that of mortgagor and mortgagee. It is this relationship which continued to hold the field on and after 3.3.1964 and hence, either parties had to enforce their rights/obligations flowing from exhibit P-1 for obtaining reliefs. Since, admittedly, the nature of suit out of which this appeal arises was not based on exhibit P-1, it had to fail. It is, therefore, not necessary for this Court to examine whether a ground under section 12(1) (f) of the Act was rightly made out or not, because it is of no consequence. 17. Consequently and in view of aforesaid reasons, I am inclined to allow the appeal, set aside the impugned judgment/decree and dismiss the suit. No costs.