- (1.) This judgment will dispose of two revision petitions bearing Nos, 744 and 745 of 1975. Both these revision petitions are directed against the order of the appellate authority dated 27th February, 1975, whereby the petitioners appeals against the order of the Rent Controller ordering her eviction had been dismissed and she was directed to vacate the premises within one month.
(2.) It is not disputed that Harbans Kaur petitioner had mortgaged the premises in dispute in each of the two revision petitions to the respondents in these petitions and subsequently executed a rent note in the respondents favour and obtained possession of the premises from them. Monthly rent in respect of both the premises was separately fixed. As no rent was paid, the respondents in both these revision petitions filed applications under Section 13 of the East Punjab Urban Rent Restriction Act for the eviction of the present petitioners and both these petitions were allowed and the appeals against those orders were dismissed. Harbans Kaur has now challenged the orders through the present revision petitions.
(3.) The principle and the only point for determination is whether there is relationship of landlord and tenant between the parties. The facts necessary for the decision of the point involved in these revision petitions are not in controversy as it is admitted that a mortgage in respect of this property was created and subsequently a rent note was also executed. The contention of Mr. Sarin is that in these circumstances the relationship of landlord and tenant does not come into existence and for this he has placed reliance on Baijnath and others v. Jang Bahadur Singh and anr., 1955 AIR(Pat) 357, wherein the following observations appear : "Where a mortgagor took back a lease of the mortgaged property by executing a Kiryanama in favour of the mortgagee and the so-called rent payable under it, in fact represented the interest payable on the mortgage money and not a rent for use and occupation. Held, that the Kirayanama was merely service for regular payment of interest on the mortgage money and not a lease of properties. The mortgagor could not therefore be deemed to a tenant of the mortgagee and the latter was not entitled to file an application under Section 11 for eviction of the mortgagor. The fact that the mortgagee had previously obtained a decree for arrears of rent was of no consequence." The above observations no doubt support Mr. Sarin's argument but a contrary view has been taken by this High Court in a number of cases. In Joginder Singh v. Smt. Jaiwanti,1973 RCR(Civ) 341 it was held that the provisions of the East Punjab Urban Rent Restriction Act had to be seen to determine whether the parties stood in the relationship of landlord and tenant or not. In similar circumstances it was found that the relationship of landlord and tenant existed between the parties. Again in Jugal Kishore v. Telu Ram (Civil Revision No. 22 of 1962, decided on 20th March, 1962) I. D. Dua, J. (as his Lordship then was cited with approval the following observations in Bakshi Ram alias Baksha v. Buta Singh, Bakshi Ram alias Baksha v. Buta Singh, 1956 58 PunLR 574 where the view contrary to the Patna view had been taken :- "The relationship of landlord and tenant comes into being when one party agrees to divest himself of the possession and the other agrees to come into it. The agreement may be express or implied but it cannot exist with such agreement. No particular form of words is necessary to constitute an instrument or lease but it will be deemed to be a lease if a perusal of the whole instrument or transaction makes it quite clear that the intention of the parties was to create that relationship. Payment of rent is a usual though not an essential incident of a tenancy. The circumstances of the present case make it quite clear that the relationship between the parties to the litigation is that of landlord and tenant. Baksha who is the owner of the house in question mortgaged it with possession to Buta Singh and several months later he executed a rent note in favour of mortgagee. He thus became a tenant of the mortgagee." The decision of the Patna High Court in Baijnath Parshad's case was cited before I. D. Dua J. in that case but the ratio of this decision was not accepted as laying down the correct law in view of an earlier authority of the Lahore High Court. Having regard to the decision in the case of Jugal Kishore and other cases mentioned above, I find that it is not a case where the judgment of the Rent Controller or the Appellate Authority can be set aside and a contrary view can be taken. The result is that the two petitions are found to be without merit and are dismissed as such. The parties are, however, left to bear their own costs. The petitioner is directed to vacate the premises within three months from to day.;