MOHAMMAD KARAMAT ALI KHAN Vs. GANESHI LAL

JUDGEMENT

(1.) This appeal arises out of a suit for arrears of rent for the years 1328 to 1330 F. under the following circumstances.

(2.) The defendants-respondents are father and son. The Defendant No. 1 as the lather of two minor sons of his and the Defendant No. 2 as an adult son mortgaged their zemindari property to the appellant's father Kunwar Latafat Ali Khan. This was on the l0 of May 1913. The defendants alone (without the minor sons of the Defendant No. 1) executed on the same day, 10 of May 1913, a counterpart of a lease (qabuliat) by which they purported to take over the mortgaged property under a lease and agreed to pay a certain amount of rent. Subsequently, on the 20 of September 1915, the original mortgagors, lather and sons, borrowed a further sum of money from the same mortgagee and gave a mortgage-deed. On the same day, the two defendants agreed by a document to pay enhanced rent the amount added being the amount due as interest on the money subsequently borrowed. When the appellant brought his suit for arrears of rent, one of the pleas taken up was that the two transactions or rather the several transactions of mortgages and qabuliats formed a consolidated simple mortgage and the plaintiff's remedy was by a suit for recovery of interest or principal and interest as the case might be, and not by a suit for arrears of rent.

(3.) The plaintiff put forward a plea that his father had previously obtained a decree for arrears of rent and that decree operated as res judicata. The learned Assistant Collector who heard the suit framed several issues and by a very short judgment decided that the several transactions formed a simple mortgage and that the ex-parte decree could not operate as res judicata.