KHYALI RAM AND ANR. Vs. SATALOO

JUDGEMENT

(1.) This is a tenant's second appeal from the decree of the 1st Addl. Civil Judge, Kanpur dismissing their appeal from a decree for ejectment passed against them by the trial court. The appeal raises an important question of law namely, whether an agreement between a mortgagor and mortgagee permitting the former to continue in possession of the mortgaged accommodation on payment of rent to the mortgagee is illegal on the ground that it violates the provisions of the U.P. Control of Rent and Eviction Act or would defeat the purpose of that Act. The facts very briefly are these. The defendant appellants mortgaged with possession their house to the plaintiff-respondent for a sum of Rs. 6,000.00 under a duly registered mortgage deed. The house was occupied by several tenants, but the appellants lived in a portion of it. Under the mortgage deed the mortgagee acquired the right to realise rent from the tenants in lieu of interest. Simultaneously with the mortgage deed a separate rent note was executed by the appellants by which they undertook to pay the mortgagee a sum of Rs. 20.00 p.m. and were permitted to continue in occupation of their portion. Subsequently they defaulted in payment and the mortgagee terminated the tenancy after the service of the usual notice of demand for rent.

(2.) The defendants resisted the suit, and one of the pleas in defence was that the agreement of tenancy was illegal being contrary to the provisions of the U.P. Control of Rent and Eviction Act. The trial court upheld this plea and declared the agreement under the rent note illegal. It dismissed the suit for ejectment. On appeal by the landlord the learned Civil Judge reversed this finding and held that there was nothing illegal in this transaction. He allowed the appeal and decreed the suit for ejectment. The tenants have come to this court in second appeal.

(3.) In my opinion the decision of the lower appellate court is correct. It is contended by the appellants that the agreement of tenancy between them and the mortgagee was illegally being in violation of Sec. 7 of the U.P. Control of Rent and Eviction Act. I do not agree Sub-Section (1) of Sec. 7 enjoins that "every landlord shall within seven days after an accommodation becomes vacant by his ceasing to occupy it or the tenant vacated or otherwise ceasing to occupy it or by termination of tenancy or by release from requisition or in any other manner whatsoever, give notice of vacancy in writing to the District Magistrate."