GULAB CHAND Vs. BABULAL

JUDGEMENT

(1.) This appeal is directed against the judgment and. decree dated 7/04/1983 passed by the High court of Madhya Pradesh (Indore bench) in Second Appeal No. 19 of 1982. By the impugned judgment. the appeal preferred by the appellant was dismissed summarily at the time of admission of the appeal under Order 41 Rule XI of the Code of Civil Procedure.

(2.) One Mr. Narayan Prgsad the predecessor in. interest of the respondents filed a suit against Gulab Chand who is the predecessor in interest of the appellants herein for eviction from the disputed property 'on the ground that he had sublet the premises. Such suit was contested by the said Gulab Chand inter alia contending that there was no relationship of landlord and tenant between the parties and Cluab Chand himself was the owner of the property and he had obtained a loan from the said Narayan. Prasad for which three documents were executed on the same day, namely, on 10/08/1962. Although. one of such documents was a. sale deed in respect of the disputed premises and the other, one was a rent note and the third document was an agreement, to repurchase the property, all the said documents if construed properly would reveal that the transactionswere essentially a mortgage in substance so far as the disputed property was concerned.

(3.) The trial court dismissed the said suit. But on appeal, the lower court of appeal remanded the same for deciding the 'same of merits. Such. order of remand was challenged by Gulab 'chand before the High court but the appeal was dismissed by the High court on a finding that the appeal was not maintainable because the order of remand was not made under Order 41 of the Code of Civil Procedure but it was made in the exercise of the inherent power of the court. After remand, the suit was decreed on the basis of the rent note executed by Gulab Chand. Such decree was upheld by the court; of appeal and by the impugned judgment the High court dismissed the second appeal on a finding that the relationship of landlord and tenant is a question of fact and such relationship having been found by the courts below, should not be interfered with in the second appeal.