TIP TOP Vs. INDRAMANI DEVI

JUDGEMENT

(1.) This is an appeal by the defendants against the judgment and decree of the Additional Subordinate Judge, Ranchi, decreeing the plaintiff's suit in part directing the defendants to vacate the suit premises.

(2.) The property in suit consists of two shop units, Nos. A and B out of the block of six shop rooms in 'J. J. Park* along with the adjoining lands and structures at its back being part of plot No. 1772, holding No. 420 in Ward No. III of the Ranchi Municipality, which is fully described in the schedule of the plaint, in which the defendants are running a laundry business commonly known as Messrs Tip Top. The defendants were in occupation of the suit premises since a year before the execution of a document forming the basis of the present suit which was executed on 10-9-1958 and has been marked as Ext. 2. The document has been described as a usufructuary mortgage bond or Bhugutbandha bond. According to the stipulations in this document, the mortgagees, namely, the defendants, were to remain in possession of the suit premises from 13-9-1858 for a period of five years, I shall refer to the stipulations and the covenants evidenced under this document in greater detail later, but at the outset I may indurate that the plaintiff instituted the suit for recovery of khas possession of the suit properties as mortgagor on the expiry of the period of the usufructuary mortgage, with mesne pro-fits from the period 13-9-1988. Alternatively, the plaintiff pleaded that in case the transaction evidenced by the mortgage bond was treated as a lease then even in that case it was for a fixed period of live years which stood terminated by efflux of time on 12-9-1963 and, therefore, the plaintiff became entitled to recover possession thereof with mesne profits. A money decree for Rupees 2,750/- on account of arrears of rent inclusive of taxes was also claimed in the alternative, representing the arrears of rent amounting to Rs. 2,175/-and Rs. 575/- on account of municipal taxes for the period after 23-3-1964. Yet another alternative plea was advanced in the plaint to the effect that in case the transaction is deemed to have created only a monthly tenancy, then even the defendants were liable to vacate the premises on the grounds of (1) personal necessity of the plaintiff-landlady, namely, 'for setting up her sons in business who had come of age and were sitting idle without any occupation, the family being a trading one', and, (2) the defendants being defaulters having not paid any amount for the period after 12-9-1963. Some other grounds of creating nuisance by flowing foul water in the adjoining area etc. were also urged, but the same were not established and have not been pressed in this Court either.

(3.) One written statement was filed by defendants Nos. 1, 2, 4 and 5 and another by defendant No. 3, followed by an additional written statement. The relevant pleas of defence with which we are concerned in this appeal are that the defendants were in possession of the premises as monthly tenants and the mortgage deed in question (Ext. 2) was executed in order to defeat the provisions of law, namely, the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1947 and, therefore, their possession was neither of mortgagees nor lessees for any fixed period. They also disputed the grounds of their eviction indicated above, namely, defaults in payment of rent or requirement of the premises for occupation by the plaintiff in good faith.