KANHAIYALAL Vs. KANHAIYALAL

JUDGEMENT

(1.) THIS second appeal by the plaintiff is directed against the judgment and decree of the District Judge, Udaipur, dated March 29, 1973.

(2.) THE facts giving rise to this appeal may be stated briefly as under. The defendant respondent mortgaged a portion of his house, fully described in paragraph No. 1 of the plaint, in favour of the plaintiff -appellant for a consideration of Rs. 5,000/ - on March 6, 1961. On the same day, the defendant executed a registered rent -note in favour of the plaintiff and agreed to pay rent a the rate of Rs. 50/ - per month. The defendant paid rent to the plaintiff up to August 1, 1962, but thereafter he did not pay the agreed rent. The plaintiff then filed a suit against the defendant respondent in the court of Munsiff. Udaipur, for arrears of rent. This suit was decreed in favour of the plaintiff for arrears of rent upto November 12, 1962. In that suit, it was held that the relationship between the parties was that of landlord and tenant. After the decision of this suit, another suit was filed for recovery of arrears of rent. In that suit, again a decree for arrears of rent was passed in favour of the plaintiff and against the defendant for the period upto July 7, 1964. The plaintiff filed a third suit for the recovery of arrears of rent from July 7, 1964 to September 14, 1965. That suit too was decreed in favour of the plaintiff on December 22, 1966. When the defendant did not pay rent even after the third suit was decreed, the plaintiff filed the present suit for the recovery of arrears of rent from September 15, 1965 to November 30, 1967 amounting to Rs. 1,325/ - and also prayed for his eviction on the ground that the defendant had made defaults in payment of rent and also on the ground that the plaintiff required the premises reasonably and bona fide for his own use Besides the arrears of rent, the plaintiff also claimed Rs. 1,000/ - for use and occupation of the house from December 1, 1967 to January 31, 1968. It was also prayed that a decree at the rate of Rs. 50/ - per month for use and occupation may also be granted from February 1, 1968 till the delivery of vacant possession of the disputed premises. The defendant contested the suit. He, however, admitted that before filing of the present suit, three suits, as mentioned in the plaint, were filed for arrears of rent and were decreed against him. He, however, pleaded that on December 7, 1964, it was mutually agreed between the parties to reduce the amount of rent from Rs. 50/ - to Rs. 25/ -. The defendant raised certain more pleas which would be clear from the following issues framed by the trial court, - -

(3.) THE trial court, after consideration of the evidence on record, decided issues Nos. 1, 2 and 3 in favour of the plaintiff. Issue No. 5 was not pressed by either of the parties. Dealing with issue No. 5, it was held that the service of the notice to quit on the defendant was proved Again, dealing with issues Nos. 8, 9 and 10, it was held that the trial of issues Nos. 7 and 9 was not barred by principles of res judicata. Issues Nos. 9 and 11 were not pressed before the trial judge. It was argued before the trial judge that as the mortgage -deed and tent -note were executed on the same day, the rent -note was merely a device to enforce the payment of interest on the mortgage money and hence the rent -note is without consideration and no relationship of landlord and tenant was ever created between the parties. This argument found favour with the learned trial judge, who held that no relationship of landlord or tenant was contemplated between the parties and the execution of the rent -note was merely a device to ensure the payment of interest. On the basis of the above finding, the learned trial judge held that the plaintiff's suit for ejectment was not maintainable, but be however, passed a decree for the amount of rent as interest for the sum of Rs. 1,425/ -. Dissatisfied with the said decree, both the parties went in appeal before the learned District Judge, Udaipur, who dismissed the appeal filed by the plaintiff and accepted the appeal filed by the defendant, and dismissed the suit in toto. The plaintiff has now preferred this second appeal to this court.