JUDGMENT
N.L. Untwalia, J.
1. The defendant-appellant executed a rehan bond in favour of the plaintiff-respondent on the 21st of July, 1949, on taking a loan of Rs. 6,000/-. On the 25th of July, 1949, only four days later, he executed a kabuliat agreeing to pay a Hunda rent of Rs. 720/-for the period Sawan 1356 Fasli to the 30th Baisakh 1357 Fasii which was described as a period of one year for the reasons to be stated hereinafter. The present suit giving rise to this appeal was instituted by the respondent for re-covery of Hunda rent for the years 1361 and 1362 Fasli plus some amount of interest thereon.
2. The trial Court Held :
“It is true that in the present case the zerpeshgi and the lease form parts of the same transaction. It appears that the stamp for both the documents was purchased on the same date and the lease was executed only four days after the execution of the zerpeshgi deed. The possession of the property all along remained with the defendant, it appears that the plaintiff never intended to come in direct possession of the property and the lease was only a device to secure payment of interest over the principal amount secured by the zerpeshgi.”
Taking this view, it did not grant a decree to the plaintiff on the basis of rent stipulated in the kabuliat, but granted a part decree at the rate of 9 per cent per annum, that is to say Rs. 540/- per year on the principal sum of Rs. 6,000/- and did not grant any decree for the amount of interest claimed on the alleged amount of rent. The defendant went up in appeal before the lower appellate Court. The plaintiff remained satisfied with the trial Court’s decree on that basis and did not file any cross-objection. The lower appellate Court has also said at one place in its judgment :
“It is obvious that the Manhunda rent had been agreed to be paid in lieu of interest to which the plaintiff was entitled on the loan and the rate of interest cannot exceed 9 per cent per annum according to the provisions of the Bihar Money Lenders Act.”
In this view of the matter it affirmed the decree passed by the trial Court. The defendant, therefore, has c°me up in second appeal to this Court.
3. Mar. L.K. Choudhari, appearing in support of this appeal, placed reliance upon two Bench dedsions of this C°urt in Baijnath Prasad v. Jang Bahadur Singh, AIR 1955 Pat 357 and in Gaya Prasad Sah v. Chitrakut Narain sinha, AIR 1960 Pat 485 and submitted that no decree could be passed in favour of the plaintiff in this case for a part of the mortgage money or interest after finding that the apparent two transactions, namely, the transaction of mortgage and lease were part of the same transaction. The contention was well founded and could not be combated by Mr. J.C. Sinha appearing for the plaintiff-respondent. The case of AIR 1960 Pat 485 has referred to an unreported Bench decision of this Court in Puna Sahu v Girnari Lal S. A. NOS. 1350 and 1956 of 1955, D/- 4-2-1960. Mr. Sinha however, contended before me when this case was taken up by me previously on the 22nd November, 1960, that on a true construction of the kabuliat (Ext. 3) and the zerpeshgi deed (Ext. 4), it would appear that they are not parg of the same transaction as has been held by the trial Court and assumed by the lower appellate Court. At his request and at the cost of the plaintiff-respondent I got those two documents translated- The two documents were placed before me now in extenso, and I have considered the terms of the two documents carefully. In support of bis contention Mr. Sinha placed reliance upon Udai Chand v. Jang Bahadur Singh, 2 pat LJ 353 : (AIR 1917 Pat 401), Umeshwar Prasad v. Dwarika Prasad, AIR 1944 pat 5 and Ganpat Turi v. Mohamad Asraf Ali, 1960 BLJR 605 : (AIR 1961 Pat 133). He stressed over the lack of one term in Ext. 4, namely, that it is not provided therein that the principal sum of RS. 6,000/- was to cany any interest. He, therefore, submitted that this was a pure usufructuary mortgage transaction, and, therefore, the lease evidenced by the kabuliat could not be said to be a device to pay any amont of interest as no interest had been fixed by the mortgage bond (Ext. 4). I am unable to accept this contention. Firstly, It is to be noted in this particular case that the decision of the learned Munsif, as I have said above, was on the finding that the two transactions in effect were part of one and the same transaction, and on that basis the leared Munsif had granted a decree for interest and not for rent. The plaintiff had a right of appeal. He neither filed any appeal nor did he file any cross-objection when the defendant filed his appeal The lower appellate Court, as I have said above, assumed this decision to be correct as it does not seem to have been challenged there even under Order 41 Rule 22, Civil Procedure Code. Since this question is a mixed question of law and fact, and in Order to satisfy myself I proceeded to examine the terms of the two deeds. The important facts which are present in the instant case are (1) that the whole of tho property which was given in mortgage was leased back to the mortgagor; (2) although the two documents were executed at an interval of four days, the stamps for both were purchased on the same date; (3) the mortgage bond (Ext. 4) provides:
“Hence I, the executant, of my own accord and free will, let out the lands, mentioned above in column No. 5 of the deed as per boundaries given below, in rehan to the claimant of this deed, mentioned in column no. 2 for a term of one year from Sawan 1356 Fs till the 30th Baisakh 1357 Fs.”
It is to be remembered that in the district of Champaran wherefrom this case comes the agricultural year ends on the 30th of Baisakh every year, and it is because of that reason that although factually the period from Sawan 1356 to 30th Baisakh 1357 would be a period of about nine months only, it was described as a period of one year. The same description of the period is to be found in the kabuliat (Ext. 3) wherein it is recited :
“I, the executant of my own accord and free will, in sound body and mind, took hunda for a term of one year from Sawan 1356 Fs. till 30th Eaisakh 1357 Fs. for cash jama of Rs. 720/- in cash and as hundedar entered into possession and occupation of the said land and executed this Kabuliat for bunda.
4. The mortgage bond provides in this
case,–
In case of failure of recovery of possession I am and shall be liable to pay the entire rehan money in cash with interest @ Re. 1/- per hundred per mensem together with costs from the day of dispossession till the day of realisation from my person and property.”
It is to be noted that the amount of Hunda rent, which was mentioned in Ext, 3, is exactly the rate of interest which is provided in this clause; for one year at the rate of one per cant per mensem the interest of Rs. 6,000/- would be Rs. 720/-. I may also motion here in this connection that the kabuliat showed a lease for a fixed term of one year only, and the present suit was for recovery of the rent for the pasli years 1361 and 1362, that is to say, on the ground of holding over, and by making out a case of holding over in this case, the plaintiff was claiming Rs, 720/- per year which is exactly the amount of interest which was provided in the mortgage bond itself on dispossession of the plaintiff from the mortgage land. One may say that factually it was dispossession of the plaintiff when the defendant held over beyond the 30th of Baisakh 1357 Fasli.
4. The case of AIR 1944 Pat 5 has not laid down that if there is no stipulation in the mortgage bond which would show that the principal money itself carries interest irrespective of the question of possession and dispossession, and there is a lease back of the property to the mortgagor, it can never be a part of the one and the same transaction; rather the facts of the instant case are very much similar to the un-reported Bench decision of this Court in Second Appeal Nos. 1350 and 1956 of 1955 D/- 4-2-1960 (Pat) referred to above. The facts of the case of 1960 BLJR 605 : (AIR 1961 Pat 133) are clearly distinguish able. There the money advanced was a sum of Rs. 500/- only and the house which was leased back was leased on a monthly rental of Rs. 20/-. It could not be shown in that case that this was in lieu of interest or was equivalent to the amount of interest stipulated in the bond. I do not think it is necessary for me to discuss in any detail the case of Pat LJ 353 : (AIR 1917 Pat 401) as there the decision was that the two transactions were part of the same transaction, and I do not find anything in that case to indicate that in absence of a clause of the kind on which great stress was laid by Mr. J. C. Sinha, it cannot be held that the lease and the mortgage are not part of the same transaction.
5. Relying upon the Bench decisions of this Court, referred to above, I hold, therefore, that the present suit for realisation of Hunda rent was not maintainable and the decree passed by the Courts below on the footing that the decree for realisation of interest only could be passed is bad and must be set aside. I, therefore, allow this appeal, set aside the judgment and decree of the Courts below and dismiss the plaintiffs suit, but on the facts and in the circumstances of the case, I would direct the parties to bear their own costs throughout.
6. Mr. J.C. Sinha referring to the decision of Raj Kishore Prasad, J., in Haji Mohammad Ahsanul Tauhid v. Shah Akhtar Hussain, 1959 BUJR 521 : (AIR 1960 Pat 106) expressed an apprehension on the grounds of equity that the plaintiff may have to lose his mortgage money because his second suit to enforce the mortgage may be held to be barred under the Provisions of Order 2 Rule 2, Civil Procedure Code. Although I am not called upon to decide this question finally in this litigation, I may only point out the distinction between that case and the instant one and that is this. In Haji Mohammad’s case, 1959 BLJR 521 : (AIR 1960 Pat 106) a compromise decree for rent had been passed and thereafter the suit was filed to enforce the mortgage. In that event it was held that a second suit to en-force the mortgage was barred under Order 2 Rule 2 as the whole claim ought to have been enforced in one suit on]y. Here in the view which I have taken, the present suit for realisation of rent or the present decree on the basis of interest on the mortgage in question is not maintainable or bad and that appears to me the clear distiction between the facts of the two cases.