GAYA PRASAD SAH Vs. CHITRAKUT NARAIN SINHA

JUDGEMENT

(1.) In the suit out of which this appeal arises the plaintiff alleged that he had taken zarpeshgi of certain property from the defendants By a mortgage deed dated 2-2-1944. On the next date the defendants executed a kabuliat taking the property in hunda rent for Rs. 354/6/- for a period of one year. The case of the plaintiff is that the defendants held over as lessees, and the plaintiff has brought a suit for arrears of hunda rent for the years 1357 to 1360 Fasli from the defendants at the rate of Rs. 354/6/- per year. The main contention of the defendants was that as the term of the lease expired, the plaintiff was not entitled to any hunda rent, and the defendants are not holding over as lessees after the ex-piry of the lease. The trial Court decreed the suit. On appeal the lower appellate Court relied upon a decision of this High Court in Bishun Prasad Ram v. Anup Narain Singh, AIR 1949 Pat 166 and held that there was no relationship of landlord and tenant between the parties after the expiry of the lease. Consequently, the remedy of the mortgagee under Section 68 of the Transfer of Property Act was by a suit for recovery of the mortgage money and not by a suit for recovery of rent in lieu of interest.

(2.) On behalf of the plaintiff, appellant in this case it was submitted that the view of law taken by the lower appellate Court is erroneous, and the decision of Ray, J., in AIR 1949 Pat 166 was set aside in review by Meredith, J., in Anup Narain Singh v. Bishun Prasad, Civil Review No. 9 of 1948, D/- 25-4-1949 (Pat). It was contended that iN view of the decision of Meredith, J., in Civil Review No. 9 of 1948 (Pat), it must be held that the suit of the plaintiff for recovery of rent was maintainable. Reference was made on behalf of the appellant also to the decision of a learned single Judge of this Court in Ramnarain Pasi v. Sukhi Tiwary, AIR 1957 Pat 24.

(3.) In our opinion, the real question at issue in the present case is whether the zarpeshgi deed dated 2-2-1944, and the kabuliat executed by the defendants dated 3-2-1944, formed part of one and the same transaction or not. If the zarpeshgi deed and the kabuliat fanned part of one and the same transaction Between the parties, it is well settled that the plaintiff cannot recover rent from the de- fendants except by a suit specifically instituted for enforcement of the mortgage. That is the view expressed by a Division Bench of this Court in Puna Sahu v. Girnari Lal, Second Appeal No. 1350 of 1955, D/- 4-2-1960 (Pat). In the present case the lower appellate Court has not applied its mind to the question whether zarpeshgi dated 2-2-1944, and the kabuliat dated 3-2-1944, formed part of the same transaction between the parties. This is a crucial issue in this case, and it is, therefore, necessary that this case should go back to the lower appellate Court for determination of this question and for disposal of the case in accordance with law.