L SHIV LAL Vs. L SHAM LAL

JUDGEMENT

(1.) THIS is a second appeal and arises out of a suit instituted by Shiv La] plaintiff against Sham Lal and others defendants for arrears of rent of a shop. The plaintiffs case was that the shop situate in Bazaar Reasi was mortgaged by the father of the defendants by a registered deed on 23 -12 -1994 for a consideration of Rs. 170/ -. The mortgage was with possession and there was a lease back executed by the mortgagor in favour of the mortgagee by which the mortgagor had to pay Rs. 1/12/. -as monthly rent of the shop to the mortgagee.

(2.) THE case was heard by a Single Judge of this Court who finding that an intricate law point was involved referred the appeal to be heard by a larger Bench.

(3.) LEARNED counsel for the appellant has argued that the District Judge has erred in dismissing the plaintiffs suit on the ground that the plaintiff was not entitled to recover rent of the mortgaged shop as the lease was only a device adopted by the mortgagee for securing regular payment of interest on the mortgage and that the relationship of landlord and tenant between the plaintiff and the defendants did not exist.