BISHUN PRASAD RAM Vs. ANUP NARAIN SINGH

JUDGEMENT

(1.) This is a defendants appeal in a suit for ejectment from two houses and for recovery of Rs. 274-1-0. The houses belonged to the defendants but the plaintiff claimed to be a rehandar in respect of them by virtue of a registered instrument of mortgage dated 9 May 1928. The plaintiff's case is that he was not given possession of the houses on the understanding that the defendants-mortgagors will hold and occupy them as tenants of the mortgagee (the plaintiff) on payment of a monthly rent of RS. 2. Along with the deed of mortgage this agreement was arrived at between the parties. In pursuance of this agreement the defendants executed a kabuliat embodying the aforesaid terms. The usufructuary mortgage was for a term of five years from the month of Asarh 1335 to the month of Jeth 1340 Fasli, while the kabuliat acknowledging the tenancy was for a term of 4 years from the month of Asar 1335 to the month of the Jeth 1339 Fasli. On expiry of the term of the tenancy, the plaintiff wanted to enter into sir possession of the houses, but, as it is alleged by the plaintiff, the defendants made a request to Babu Rambhajan Singh, one of the ancestors of the plaintiff, to allow them to remain in the house on payment of an enhanced rent of RS. 5 per month. This request was agreed to and the defendants occupied the said houses from the month of Asarh 1339, Fasli on the fixed rent of Rs. 5 per mensem and had been paying the same up to the month of Bhado 1346. The defendants were called upon by the plaintiff to execute a fresh kabuliat, but they raised objection on the ground that they would be put to unnecessary expense. The defendants in contravention of the agreement having failed to pay the agreed rent, from the month of Asin 1341 Fasli up to the month of Jeth 1349, in spite of repeated demands, the plaintiff served them with a notice to quit, calling upon them to give vacant possession of the houses to the plaintiff from the 1 of Asarh 1349, Fasli. The plaintiff claimed that the alleged tenancy has terminated since then, and he is entitled to possession. Besides, he has claimed for recovery of the aforesaid sum in lieu of arrear of rents due with interest at the rate of Rs. 1/9/0 per cent, per month.

(2.) The defendants resisted the suit impugning the real character of the rehan which they claimed was a farzi transaction. They repudiated the relationship of landlord and tenant and challenged maintainability of the suit. In paragraph 18 of the written statement it was stated: That these defendants tenancy is not of monthly character, rather these defendants all along had and have title to the said house as absolute owners, and occupancy right therein. The plaintiff neither ever had any connection whatsoever therewith except as rehandar, nor was there any reason for it.

(3.) Both the Courts below have come to a finding that the rehan is not farzi, that the plaintiff was entitled to possession of the houses on ejecting the defendants and to recover rent at the rate of Rs. 2 per month without any interest. The defendants were given one month's time to vacate the house. Hence this second appeal.