DHANA BAI Vs. KEWARA BAI

JUDGEMENT

(1.) THIS appeal filed by the plaintiff-landlord is directed against a decree of the First additional District Judge, Raipur, dated 12-4-1967 reversing the judgment of the First Civil Judge Class II, Raipur, dated 30-11-1965 and dismissing the plaintiff's suit for ejectment, arrears of rent and damages. The appeal has been referred to , larger Bench by the Hon'ble the Chief Justice as the questions involved are of general importance.

(2.) THE facts leading to the appeal may be shortly stated. The plaintiff sought ejectment of the defendants under Section 12 (1) (a) (b) and (e) of the Madhya pradesh Accommodation Control Act, 1961. The defendants contested her claim and pleaded * that the parties did not stand in the relation of landlord and tenant. Their plea was that the transaction embodied in the registered sale deed dated 286-1960 (Ex. P-15) was, in reality, a mortgage by conditional sale. That plea has not prevailed in the Courts below, and it has been found that the transaction under which the plaintiff claims was an out-right sale coupled with an agreement for reconveyance within two years and the defendants not having exercised the right of re-conveyance within the time stipulated therefor, the title of the plaintiff had become absolute. It may be stated that on 28-6-1960, contemporaneous with, the execution of the sale deed (Ex. P-15) by the defendants, the plaintiff executed an ikrarnama (Exhibit D-1) embodying the terms of the agreement. Further, on that day, the plaintiff let out the house to the defendants for a period of two years on rent of Rs. 5/- per month, and in token of the contract of tenancy, the defendants executed a rent note (Ex. P-16 ).

(3.) THE learned trial Judge decreed the plaintiff's claim, but that decree has been reversed in appeal. On appeal, the learned Additional District Judge has non suited the plaintiff on the ground that the rent note (Ex. P-16) being for a period of more than one year, was inadmissible in evidence for want of registration under Section 49 of the Registration Act, and no oral evidence could be let in in proof of the contract of tenancy, such evidence being barred under Section 91 of the Evidence act and, therefore, the alleged tenancy has not been proved.