SHEIKH DILDAR HUSSAIN Vs. SHEIKH SADDIP

JUDGEMENT

(1.) The plaintiffs who are the appellants have been held by the learned Judge in the Court below to be mortgagees and not being registered, their action against the defendants for rent not maintainable. It has been decided in the Court below that contrary to the defendants contention the rent had not been paid. The only question therefore to consider in this Court is whether the learned Judge in the Court below, affirming the decision of the trial Court, was right in coming to the conclusion that the plaintiffs were in fact and in law mortgagees.

(2.) It would appear that they entered into possession as lessees in the year 1922; but from the document Ex. 1 in the case which is before us, it appears that a fresh arrangement was entered into two years after, wards. The original thika lease which was not produced in the Court below was cancelled and a fresh agreement was made.

(3.) From the different expressions used in the document it might be supposed on the one hand that the plaintiffs were lessees and on the other hand mortgagees; but the substance of the deed has to be looked to Para. 3 of the document recites the fact of the property being given in thika patta; and then in para. 4 it is recited that in order to meet legal necessities the grantor of this document borrowed Rs. 10,000. Certain details of that debt are recited. Then in para. 5 it states inter alia: It was therefore finally settled between me and the said thikadars, the mahajans, that the jama of mauzas Chaurasa and Khotaul aforesaid be reduced from the jama entered in the said thika patta by Rs. 400; that a fresh annual jama of Rs. 4,000 be fixed, that after fixing the rate of interest on the bond money and the hand note money aforesaid, as well as on the money to be borrowed at the time of the execution of this sudbharna bond at 10 1/2 annas per hundred rupees per mensem the former thika patta dated 28 July 1922 aforesaid be cancelled and that a fresh sudbharna thika patta be executed, and both parties consented and agreed to the above.