A deed labeled as a usufructuary mortgage may be construed as an anomalous mortgage if its contents do not fall within the definition of usufructuary mortgage.

P.K.Deb, J.

1. This Civil Revision application has been directed against the judgment and decree dated 4.6.1996 passed by Shri S.K. Srivastava, Munsif, Ranchi, in Eviction (Title) Suit No. 14 of 1995 under Sec. 14 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 (hereinafter to be referred to as the Act).

2. The suit premises consists of a shop situated in the building comprised in M.S. Holding Nos. 1027 and 1097 within Ward No. II (old), present Ward No. VIII of Ranchi Municipal Corporation at Buchar Gali, Ranchi. The suit is based on a deed of settlement of the suit premises between the parties. According to the plaintiffs, although the deed dated 14.2.1990 has the nomenclature of usufructuary mortgage. It is a lease deed for all practical purposes and on the basis of the same, the defendant has been inducted as a tenant in the shop house on a monthly rental of Rs. 1000.00 per quarter. By the deed, advance of Rs. 20,000.00 has been taken from the defendant by the landlord-plaintiffs and the said amount is to be adjusted towards the rental as mentioned above within five years. According to the plaintiffs, after the five years was completed, the defendant-petitioner did not vacate the suit premises and hence eviction has been sought for on the ground of expiry of the term of tenancy as contemplated under the Act. The suit was proceeded under the summary procedure under Section 14 of the Act.

3. The main contest in the suit is with respect to the interpretation of the deed as to whether it is a mortgage deed. The learned court below decreed the suit after consideration of legality and other oral evidence to the effect that the deed although it was mentioned as a mortgage deed but it was practically a lease deed and hence after the period of lease, the defendant is liable for eviction.

4. To appreciate the submissions made on behalf of the parties, the original case record was brought.

5. Mr. Ughal, learned Counsel appearing on behalf of the defendant-petitioner submitted that for all purposes, the deed was not by nomenclature alone a deed of mortgage and it was never a lease deed. According to Mr. N.K. Prasad, learned Counsel appearing on behalf of the plaintiffs-opposite parties, from the terms and conditions of the deed and its averments and contents, it is clear that the suit premises was given to the defendant-petitioner by the plaintiffs for enjoyment as a tenant and usual terms and conditions of tenancy were being incorporated in the document itself and as such by nomenclature of usufructuary mortgage, the deed cannot be construed as mortgage but should be legally construed as a lease deed he has referred to the written statement of the defendant at paragraph 11 and other paragraphs wherefrom it could be found that the defendant was already a tenant in the suit premises and then the deed was executed. So according to the plaintiffs, it was an admitted fact that the defendant was a tenant under the plaintiffs on month to month basis.

6. It might be that the defendant was a tenant on month to month basis under the plaintiffs and a tenant is not debarred in taking mortgage of the tenanted premises from the landlord and then generally tenancy is merged with the right of mortgagee if no distinction is vested by averments of the deed or by intention os that averment alone that the defendant was a tenant previous to the execution of the deed may not infer that the mortgage deed was only a deed of lease for the purpose of continuance of the tenancy rather it goes against the plaintiffs with regard to month to month tenancy even if the deed is construed as a lease deed. The same tenancy has been transformed to a tenancy with condition of payment of quarterly rent year wise. If month to month tenancy is transformed to a quarterly tenancy as per the deed then there remains big interrogation sign as to whether the Act would be applicable for the purpose of eviction or not. Moreover, although it is a fact th