SAGARMAL ONKARJI Vs. JETHMAL SURAJMAL

JUDGEMENT

(1.) THIS is an appeal against an order of remand passed by the Additional District judge Indore under Order 41, Rule 23, C. P. C.

(2.) THE facts giving rise to this appeal are as follows : plaintiff filed this suit for ejectment and arrears of rent amounting to Rs. 960/- on the allegation that the defendant mortgaged with him his house in Chowk Bazar Mahidpur Ward No. 1 House No. 163 on 20-41950 "under a deed of usufructuary mortgage duly registered for a consideration of Rs. 8000/- and delivered possession to him on that day; that out of the aforesaid property possession of the portion of the house mentioned in Para No. 1 of the plaint was actually given possession of to the plaintiff and that the remaining portion of the house was taken by the defendant on Rs. 30 P. M. as rent; that four days later i. e. on 20-41950 the defendant executed a rent-note in plaintiffs favour in respect of that portion; that the defendant thereafter did not pay any rent; that the plaintiff thereupon gave notice to him on 22-10-1952 calling upon him to pay the arrears of rent and vacate the premises by the end of the current month; that in spite of the notice the defendant neither paid the arrears nor vacated the premises. The plaintiff therefore claimed Rs. 960/- as arrears of rent up to 20-12-1952, ejectment and further mesne profits.

(3.) THE defendant in his written statement denied the creation of the mortgage by a deed dated 20-4-1950, delivery of possession of any portion of his property and execution of a rent-note in plaintiffs favour on 24-4-1950 for Rs. 30/- P. M. He admitted the receipt of plaintiffs notice and stated that the same had been replied to. He also raised questions relating to court-fees and the suit not being within pecuniary jurisdiction of that Court.