JAGTA Vs. HARI CHAND

JUDGEMENT

(1.) THE appellant who is the defendant in the suit mortgaged his house to the respondent -plaintiff. The mortgage purported to be possessory in character. On the day the mortgage was registered, the mortgagee leased the property back to the mortgagor under a separate deed reserving a monthly rent and providing that in default of payment of rent the lessee will be liable to be evicted. The lease back did not stipulate that the arrear of rent will be a charge on the mortgage property, nor did the mortgage deed create a charge for interest on the property but it provided that the rent of the mortgaged house was to be equal to the interest due on the mortgage money.

(2.) THE mortgagor -lessee kept a considerable amount of rent in arrear and the mortgagee -lessor , instituted a suit for eviction and arrears of rent in the court of the Subordinate Judge at Jammu. The suit was decreed. On appeal the Addl. District Judge at Jammu confirmed the decision of the trial court. The mortgagor -lessee has therefore, come up in second appeal to this court.

(3.) THE learned counsel for the appellant has raised before me a question of law based on what he claims to be a true construction of the mortgage and the lease back. According to him, these two documents form parts of a single transaction and the relationship between the parties is only that of mortgagor and mortgagee and not of lessor and lessee. His entire case is based on the contention, that the effect of the mortgage and the lease back read together is to create a simple mortgage under which the mortgagee has no right to possession of the property but is entitled only to enforce the security for recovering the mortgage debt.