BAKSHI RAM Vs. BUTA SINGH KAHAN SINGH

JUDGEMENT

(1.) THIS petition raises the question whether a certain agreement entered into between one Buta Singh and Baksha constitutes a deed of lease or a deed which merely secures the rent of the property.

(2.) IT appears that one Bakshi Ram alias Bakhsha is the owner of a certain house situate in Ferozepur. On the 12th January 1946 he executed a deed of mortgage in a sum of Rs. 1,200/- in favour of Buta Singh. This was followed by a rent note dated the 15th July 1946 by which he agreed to pay a sum of Rs. 6/- per mensem by way of rent in respect of this property. The house in question was later destroyed by floods and Baksha constructed a new house on same site. On the 13th November 1948 Baksha executed a fresh deed of mortgage In a sum of Rs. 2,600/- in favour of Buta Singh and on the sains day he agreed orally to pay rent at the rate of Rs. 8/- per mensem to Buta Singh who was the mortgagee with possession. Baksha failed to pay the rent which was due from him and Buta Singh accordingly secured an order for the ejectment of Baksha which was later confirmed by the district Judge in appeal. Baksha has now presented an application under Article 227 of the Constitution.

(3.) MR. Abnasha Singh, who appears for the petitioner in the present case, invites my attention to Baijnath Prasad v. Jang Bhadur Singh, AIR 1955 Pat 357 (A) in which a Division Bench of the Patna High Court held that where a mortgagor took a lease of the mortgaged properties by executing a kirayanama in favour of the mortgagee and the so-called rent payable under it in fact represented the interest payable on the mortgage money and not a rent for use and occupation, the kirayanama was merely a service for regular payment of interest on the mortgage money and not a lease of the properties.