RAM UDHAR Vs. HARI CHAND

JUDGEMENT

(1.) THIS petition raises the question whether the relationship of landlord and tenant exists between the petitioner and the respondent.

(2.) RAM Udhar and two others are stated to be the owners of a. certain house situate in Ludhiana. On the 15th July 1944 the owners mortgaged the property with Hari Chand and Dharam Chand for a sum of Rs. 10,000/ -. The mortgage was with possession. It was Stipulated that interest would run at the rate of annas eight per mensem but would increase to annas ten per mensem in case of default. On the same day the mortgagors executed a rent deed by virtue of which they agreed to pay rent at the rate of Rs. 600/- per annum to the mortgagees.

(3.) THE mortgagors failed to pay the rent which was due from them and on the 3rd september 1953 they created a second mortgage more or less on the same terms as were incorporated in the first mortgage deed. On the same date that is on the 3rd September 1953, the mortgagors agreed to pay rent at the rate of Rs. 750/per annum. On the 21st June 1955 the mortgagees applied for ejectment of the mortgagors on the ground that the mortgagors had failed to pay the rent which was due from them. The Rent Controller came to the conclusion that the relationship of landlord and tenant existed between the parties, that the mortgagors had failed to pay rent for the period in dispute and that they were liable for eviction from the premises in question. The order of the Rent Controller was upheld by the learned District Judge and the mortgagors have come to this court in revision. 3a. Mr. Wadhera, who appears for the mort-gagors, invites my attention to baijnath Prasad v. Jang Bahadur Singh, AIR 1955 Pat 357 (A) where a mortgagor took back a lease of the mortgaged properties by executing a kirayanama in favour of the mortgagee. It was held that the so-called rent payable under the kirayanama in fact represented the interest payable on the mortgage money and not rent for use and occupation, that the kirayanama was merely a device for regular payment of interest on the mortgage money and not a lease of the properties and that the relationship of landlord and tenant did not come into existence between the mortgagee and mortgagor.