MATHURALAL Vs. SOBHAGWAL

JUDGEMENT

(1.) THERE two second appeals are respectively by the defendants (66/56) and by the plaintiffs (58/56) from the judgment and decree of the first appellate Court upholding the decree for ejectment and rent -arrears, in respect of two houses rented by the defendants from the plaintiffs on the strength of rent notes dated respectively the 7th November, 1939 and the 14th August 1940. These houses had originally been in the ownership and possession of the defendants themselves, but had been mortgaged with possession (rehan bil kabj) to the plaintiffs on the same dates on which the rent notes were executed, there also being a cross -reference in either document to the other in respect of the same house. The defendants had throughout contended that there was really no landlord -tenant relationship, the arrangement of a mortgage -cum -please back on rent reserved being merely a device to secure more effective payment of the interest so that the suit for rent and ejectment did not lie, "being a contravention of the provisions of Order 34 Rule 14." In addition, even within the frame -work of a suit for ejectment and rent, the defendants pleaded that there had been no notice as required under the Gwalior Transfer of Property Act (under a provision corresponding to Section 106 the Indian Transfer of Property Act) and further, that part of the claim was time -barred; and thirdly the money claimed being essentially one for interest, it should be scaled down in accordance with the Madhya Bharat Interest Act of 1954.

(2.) APART from the other questions which are of very little significance as will presently appear, the crucial issue in the main appeal by the defendant (66 of 1956) is, whether the agreements in regard to the two houses, respectively of 7 -11 -1939 and 14 -8 -1940 should be treated as being really separate ones in the eyes of law, the first, mortgage with possession given by the mortgagors (defendants) to the mortgagee (plaintiff), and then a lease based on the rent -note by which the mortgagor became the tenant from the mortgagee who had, at any rate, notionally got into possession. This practice appears to be very common all over the country as the same question bas come up from time to time before different High Courts which have taken somewhat conflicting views.

(3.) 1958 JLJ 788.