JUGAL KISHORI DEVI Vs. ASHOK MILLS AND FOUNDRIES

JUDGEMENT

(1.) In Miscellaneous Judicial Case No. 282 of 1959 respondent No. 1 took a registered lease from Sri Guru Prasad Singh of certain property comprising holding No. 30 of Ward No. 7 of the Dinapur Nizamat Municipality on the 16th of January, 1948, for a period of thirty years. On the 16th of May, 1953, Guru Prasad Singh made a gift of the property to the Petitioners and notice of the gift was sent to respondent No. 1. Subsequently, in the year 1956, respondent No. 1 made an application for fixation of fair rent under Section 5 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, Bihar Act III of 1947. On the 24th of January, 1957, the Controller dismissed the application on the ground that the lease was governed not by the Provisions of Bihar Act III of 1947, but by the Transfer of Property Act, Respondent No. 1 took the matter in appeal to the Collector, and the appeal was dismissed on the 4th of December, 1958. Respondent No. 1 took the matter in revision to the Commissioner who reversed the decision of the Collector and held that the lease was governed by Bihar Act III of 1947, and the matter was remanded to the Controller for fixation of fair rent. The order of the Commissioner is dated the 4th of March, 1959. Against this order the petitioners have moved the High Court for grant of a writ in the nature of certiorari under Article 226 of the Constitution.

(2.) With regard to the same lease the Petitioners instituted a Money Suit, namely Suit No. 79 of 1956, against respondent No. 1 for recovery of arrears of rent. The suit was contested by the respondent on the ground that no fair rent had been fixed. But the learned Subordinate Judge overruled the contention of the defendants and held that the case was not governed by Bihar Act III of 1947, but by the Transfer of Property Act. In this view the Subordinate Judge granted a decree to the plaintiffs for arrears of rent. An appeal against the decree was dismissed by the Additional District Judge of Patna. The defendants to the suit have presented Second Appeal No. 1018 of 1958, against the decision of the Additional District Judge of Patna.

(3.) In Miscellaneous Judicial Case No, 282 of 1959 and Second Appeal No. 1018 of 1958, therefore, the same question of law arises for determination, namely, whether the lease executed by Guru Prasad Singh in favour of respondent No. 1, dated the 16th of January, 1948, is governed by the provisions of Bihar Act III of 1947 or whether the lease is governed by the provisions of the Transfer of Property Act.