KUNWAR GOPI CHAND Vs. NANAK CHAND

JUDGEMENT

(1.) JUDGEMENT This is a defendants application in revision under S.25 of the Small Cause Courts Act against the judgement and decree of the Judge, Small Causes, Moradabad decreeing the plaintiff-opposite partys suit for recovery of arrears of rent and ejectment.

(2.) ON 17th December, 1949, Gopi Chand, the defendant-appellant executed a registered mortgage-deed in favour of the plaintiff-opposite party under which he mortgaged the house in dispute for a consideration of rupees 50,000/-. The mortgage-deed (Ext. 8) contained a recital that the possession of the house was transferred to the mortgagee. The defendant took the house on rent from the mortgagee and executed a registered rent note (Ext. 5) in favour of the mortgagee. The rent note was for a period of three years on a rent of Rs. 500/- per mensem. On 14-12-1964, the mortgagor executed another registered rent note (Ext. 1) for payment of rent at the rate of Rs. 200/- per mensem for a period of one year. On the expiry of the period of lease, the defendant continued in possession. The plaintiff-opposite party after serving a composite notice on the defendant demanding arrears of rent and determining his tenancy filed suit for recovery of arrears of rent and ejectment against the defendant.

(3.) LEARNED counsel for the defendant contended that there existed no relationship of landlord and tenant between the parties; instead the relationship between the plaintiff and the defendant was that of mortgagee and mortgagor and the rent note was simply a device for the payment of interest. The possession of the house was never handed over to the mortgagee and in substance and in effect, the mortgage in question was a simple mortgage. He placed reliance on Baijnath Prasad v. Jang Bahadur Singh (AIR 1955 Pat 357); Hari Lal Bhagwanji v. Hem Shanker Umiya Shanker (AIR 1958 Bom 8); and Dr. Muhammad Ahsanul Tauhid v. Akhtar Hussain (AIR 1960 Pat 106). On the other hand, learned counsel for the plaintiff-opposite party urged that since the defendant had executed a usufructuary mortgage in favour of the plaintiff-opposite party, it was open to him to lease out the house in question to the defendant mortgagor and if there was any default in payment of rent, the mortgagee was entitled to maintain a suit for realisation of recovery of arrears of rent and ejectment against the mortgagor. He placed reliance in Feroz Shah v. Sohbat Khan (AIR 1933 PC 178); Kuer Mohammad Ashraf Ali Khan v. Behari Lal (AIR 1937 All 478); Pyarelal v. Ram Swarup (AIR 1944 All 221) and Lal Chand v. Nenu Ram (AIR 1963 Raj 69).