Important Point
The Courts below failed to consider the import of all the said docu­ments executed on the same day and the High Court was wrong in holding that the finding of the Courts below about the relationship of land­lord and tenant was a concluded finding of fact.

Order

This appeal is directed against the judgment and decree dated April 7, 1983 passed by the High Court of Madhya Pradesh (Indore Bench) in Second Appeal No. 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 Code of Civil Procedure.

2. 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. Such suit was contested by the said Gulab Chand inter alia contending that there was no rela­tionship 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 August 10, 1962. Although, one of such documents was a sale deed in respect of the disputed premises and the other one was a rent note and the third document was an agreement to repurchase the property, all the said documents if construed properly would reveal that the transactions were essentially a mortgage in substance so far as the disputed property was concerned.

3. The trial Court dismissed the said suit. But on appeal, the lower court of appeal remanded the suit for deciding the same of merits. 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 not maintainable because the order of remand was not made under Order 41 of the Code of Civil Procedure but it was made in the exercise of the inherent power of the Court. After remand, the suit was decreed on the basis of the rent note executed by Gulab Chand. Such decree was upheld by the court 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 courts below, should not be interfered with in the second appeal.

4. Mr. S.K. Gambhir, the learned counsel appearing for the appellant, has submitted that the High Court had clearly erred in not considering the said three documents executed on August 10, 1962 for the purpose of finding out whether it was a case of out and out sale and then induction of tenancy on the basis of the rent note or whether it was a case of mortgage in substance on account of the loan advanced to the predecessor of the appellant. Mr. Gambhir has submitted that the law is well settled that the construction of document is a question of law. In the aforesaid facts, the High Court was not justified in proceeding on the footing that no interference was called for against the concurrent finding of fact when such finding of fact was made on the basis of the rent not without considering other document executed on the same day. Mr. Gambhir has relied on the decision of this Court in Smt. Indira Kaur v. Shiv Lal Kapur1. In the said case, A had exe­cuted a document selling certain property to B for certain sum. On the same day, a contemporaneous 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 come to the ending that the transaction in question as one of mortgage in essence and substance though it was clothed in the garb of sale. Mr. Gambhir has submitted that the documents executed in the instance case on August 10, 1962 are also of similar nature and if the said docu­ments are looked into, it will be quite evident that the parties intended to secure the loan by execution of the said documents. There­fore, it was really a mortgage in essenc