PHOOL CHAND JAIN Vs. CHHOTE LAL

JUDGEMENT

(1.) THE defendant, having lost in the Court below, has filed this second appeal against the judgment and decree of arrears of rent and of eviction under Section 12(1)(a) of the M.P. Accommodation Control Act, 1961, for short the "Rent Act" passed in Civil Appeal No. 44-A/1976, by Second Additional Judge, Guna, on 22.12.1979.

(2.) BRIEF facts leading to this appeal are thus - The defendant is owner of the suit property which was mortgaged by him with the plaintiffs for a consideration of Rs. 12,000/- vide registered mortgage-deed (Ext. P-1), dated 28.8.1970. The mortgage with possession, an unsufructuary mortgage, as defined under Section 58(d) of the Transfer of Property Act, 1882 (for short "the Act"). On the same day, the mortgagees/plaintiffs leased back the property to the mortgagor/defendant on the terms and conditions mentioned in the rent note (Ext. P-2) on a monthly rent of Rs. 141/- for a period of 10 months. A formal handing over and taking over of possession by delivery of the key of the suit property took place between the parties at the time of execution of the aforesaid two deeds. The appellant after taking over possession of the suit property on rent, did not make any payment of rent, hence, the mortgagees as landlords served a notice, dated 2.3.1971 (Ext. P-5) making a demand therein to pay the arrears of rent due. When even after expiry of two months the arrears were not paid, the mortgagees/plaintiffs served another notice, dated 20.8.1971, re-agitating the demand of the accrued rent due and terminating the tenancy of the defendant/appellant in accordance with the provisions of Section 106 of the Act. After expiry of two months, as the rent was not tendered to the mortgagees/landlords they instituted a suit on 1.3.1972 for eviction, for realisation of arrears of rent under Section 12(1)(d) of the Rent Act and mesne profits. After service of the writ of summons of the suit, the defendant did not deposit the arrears of rent within one month of the institution of the suit nor deposited any amount of rent during the pendency of the suit. The defendant contested the suit on the ground that there was no relationship of landlord and tenant, the amount of Rs. 141/- was to be paid towards monthly interest on the amount of Rs. 12000/- and rent-note (Ext. P-2), was executed by him as a collateral security for payment of interest. The trial Court framed six issues which arose out of pleadings of the parties. Issue No. 1 related to the relationship of landlord and tenant between the plaintiffs and the defendant, issue No. 2 was raised to the effect "whether the defendant took the suit property on rent from 28.8.1970 for a period of 10 months on a monthly rent of Rs. 141/- or the defendant took loan of Rs. 9000/- by mortgaging the suit property and whether the rent-note was executed by the defendant towards payment of interest on the mortgage amount as penalty." After recording evidence, the trial Court decreed the suit holding that the mortgage was a mortgage with possession, a, usufructuary mortgage the mortgagees/plaintiffs, after taking possession of the mortgaged property, leased back the suit property to the defendant/mortgagor on execution of the rent-note (Ext. P-2) by the defendant, and key of the suit-property, which was handed over by the defendant to the plaintiffs/mortgagees, was again given to the defendant. Relationship of landlord and tenant came into existence. As the defendant did not make any payment of rent after service of the notice of demand or even after the institution of the suit, a decree for eviction under Section 12(1)(a) of the Rent Act and for arrears of rent, was passed. The lower appellate Court also confirmed the findings and decree of the trial Court. Aggrieved of the judgment and decree of the Courts below, the defendant has preferred this second appeal which was admitted by this Court on 24.4.1980 on the following substantial question of law :

(3.) SHRI R.D. Jain, learned counsel for the respondents/landlords, submitted that the two Courts below, after appreciation of evidence led by the parties on specific issues arising out of the pleadings relating to relationship of landlord and tenant and after considering the mortgage-deed and the rent-note, have held that as the mortgage was a mortgage with possession and the suit property was leased back, the mortgagees became landlords as defined in Section 2(b) of the Rent Act and that they are entitled to maintain a suit for eviction on any of the grounds available under Section 12(1) of the Rent Act. Reliance was placed on a recent pronouncement of the Apex Court in the case of S.B. Abdul Azeez (by LRs.) v. M. Maniyappa Setty, AIR 1989 SC 553, wherein the earlier decision of the Apex Court in Mathuralal v. Keshar Bai and another (supra) was followed. Learned counsel also placed reliance on D.B. and Single Bench decisions of the Apex Court in Trustees of Motidas Beragi Sadhu Trust Board v. Ramjatan Ramprasad Sonar, AIR 1963 MP 265; Mathuralal v. Sobhagmal, 1964 JLJ 376. Ramlal Bhagirathji v. Mahanti Atmaramji, 1960 JLJ 950, and a decision of this Court in Mahila Karanbai alias Bhauji v. Bheronlal, 1985 MPR CJN (101). Learned counsel submitted that the suit being not a redemption suit, nor a suit for foreclosure, the question of re-opening of the accounts relating to interest, does not arise and, as the defendant/appellant has not deposited the arrears of rent and the rent accrued during the pendency of the suit at all, the decree for eviction cannot be set aside.