LALCHAND Vs. NENURAM

JUDGEMENT

(1.) THIS is a Civil Second Appeal in a suit for ejectment and arrears of rent.

(2.) THE case set out by the plaintiffs is that the defendants had executed the rent note (Ex. 1) in their favour on the 15th of October, 1946, after taking on lease the house property situate at Jodhpur and mentioned in detail in Para No. 1 of the plaint. The defendants failed to pay rent for a long time and therefore two notices were served on them for ejectment and arrears of rent and ultimately the suit was brought on the 30th of October, 1950, in the Court of the Munsiff, City, Jodhpur for ejectment and arrears of rent. Two of the defendants, namely Nenu Ram and shyam Lal contested the suit, while the case proceeded ex parte against Mst. Soni who died during the pendency of this appeal and her name has been struck off. The main defence raised by the contesting defendants is that on the I5th of october, 1946, the defendants had mortgaged the suit property with the plaintiffs for Rs. 5,500/-/-with interest at 6 per cent per annum and further executed the document (Ex. 1) in favour of the plaintiffs to the effect that they will continue to pay Rs. 27-8-0 per month. That document is not a rent note but was written to ensure payment of interest, to the plaintiffs. The plaintiffs could not base their claim for ejectment and of arrears of rent on that document. The trial Court accepted the defence of the defendants and dismissed the suit for ejectment relying on a decision of Patna High Court in Baij Nath v. Jag Bahadur Singh, AIR 1955 Pat 357. It, however, decreed the plaintiffs' suit for Rs. 1,249-4-9 as arrears of rent. On appeal by the plaintiffs, the learned District Judge upheld the decision of the trial Court as regards ejectment. Hence this second appeal on behalf of the plaintiffs.

(3.) THE facts which are no longer in controversy in the second appeal are that the defendants had executed a mortgage deed in favour of the plaintiffs on the 15th of october, 1946, the main terms and conditions of which are, as follows : -