JAIBUNNISSA Vs. LALAU KUMAR

JUDGEMENT

(1.) The suit, out of which this second appeal arises, was originally filed by one Basant Lal, on whose death his heirs were a substituted. The subject-matter of the litigation is a shop bearing holding no. 90, in the town of Biharsharif, detailed in the plaint which admittedly belonged to Basant Lal. On the 5th August, 1960, he executed an usufructuary mortgage (Ext. 2) in respect of the suit shop in favour of the sole-defendant, Mohammad Ismail, who was occupying the premises from before, as a tenant. The term of the mortgage was mentioned as five years. It was said that the defendant should vacate by the 30th Shrawan, 1372 Fasli.

(2.) According to the case of the plaintiff he tendered the mortgage money and, on refusal, deposited the same under section 83 of the Transfer of Property Act. He also served a notice under section 106 of the Transfer of Property Act before filing the present suit.

(3.) The defendant resisted the suit on the ground that the earlier relational of landlord and tenant continued botween the parties and it was not and could not be modified as a result of the mortgage document (Ext. 2). The trial Court held that the defendant continued to occupy the premises as a tenant on monthly basis and the tenancy was not reduced to that for any specified period. However, since the tenancy was lawfully terminated by notice under section 106 of the Transfer of Property Act, the defendant was liable to eviction. With regard to the effect of Exhibit 2 on the status of the defendant, the Court held that the transaction, being in violation of Section 3 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, was liable and fit to be ignored. A decree for eviction, besides a money decree for arrears of rent, was passed.