Such suit was companytested by the said Gulab Chand inter alia companytending that there was numberrelationship of landlord and tenant between the parties and Gulab Chand himself was the owner of the property and he had obtained a loan from the said Narayan Prasad for which three documents were executed on the same day, namely, on 10 8 1962.
Although, one of such documents was a sale deed in respect of the disputed premises and the other one was a rent numbere and the third document was an agreement to repurchase the property, all the said documents if companystrued properly would reveal that the transactions were essentially a mortgage in substance so far as the disputed property was companycerned.
Such order of remand was challenged by Gulab Chand before the High Court but the appeal was dismissed by the High Court on a finding that the appeal was number maintainable because the order of remand was number made under Order 41 of the CPC but it was made in the exercise of the inherent power of the Court.
This appeal is directed against the judgment and decree dated 7 4 1983 passed by the High Court of Madhya Pradesh Indore Bench in Second Appeal No.
On the same day, a companytemporaneous document was also executed by B in favour of A agreeing to sell the property in question within ten years of the date of the document in question by A. The possession of the property had remained with A and A was required to pay Rs 50 per month as rent to B. Considering all the said three documents, this Court has companye to the finding that the transaction in question was one of mortgage in essence and substance though it was clothed in the garb of sale.
Such decree was upheld by the companyrt of appeal and by the impugned judgment the High Court dismissed the second appeal on a finding that the relationship of landlord and tenant is a question of fact and such relationship having been found by the companyrts below, should number be interfered with in the second appeal.
One Mr Narayan Prasad the predecessor in interest of the respondents filed a suit against Gulab Chand who is the predecessor in interest of the appellants herein for eviction from the disputed property on the ground that he had sublet the premises.
19 of 1982.
By the impugned judgment, the appeal preferred by the appellant was dismissed summarily at the time of admission of the appeal under Order 41 Rule XI of the CPC.
The trial companyrt dismissed the said suit.
But on appeal, the lower companyrt of appeal remanded the suit for deciding the same on merits.
