This appeal is directed against the judgment and decree of the learned District Judge, Kutch, in civil regular appeal No.21 of 1964 allowing the appeal and setting aside the decree of the lower court in regular civil suit No.224 of 1962 and decreeing the plaintiff's suit for possession of the suit premises.

2. The facts giving rise to this appeal briefly stated are as under:-

The house bearing Municipal Census Nos.705 and 706 described in details in the plaint belonged to the respondent Lalji Purshottam. The said house was mortgaged with possession for a period of 99 years to Lohana Saraswati Kanvashala, hereafter referred to as the mortgagee, as per mortgage deed EX.40. The mortgage deed specifically permitted the mortgagee to lease out the said property during the subsistence of the mortgage. The mortgagee agreed to lease in favour of the present appellant Thacker Madhavi Meghaji. The lease was from month to month and the rent was fixed a Rs.12/- per month. Thereafter, on 15-3-1962, as per document Ex.44, by an agreement between the mortgagor and the mortgagee, re-conveyance deed was executed under which, on payment of Rs.2,000/-, the mortgagee agreed to release the mortgaged property from possession. A notice, Ex.41 was given by the trustees of the Mandal to the present appellant informing him about the said re-conveyance deed Subsequently, the present respondent gave notice. Ex.38 asking the appellant to hand over possession of the property on the ground that he required the suit house for his reasonable and bona fide personal use and that certain repairs were require to be effected in the house which could not be done unless the house was vacated by him. As the lessee, that is the present appellant refused to hand over possession a suit was filed in the court c the learned Civil Judge, Senior Division, Bhuj for recovering possession on the ground that the plaintiff required the suit premises for bona fide reasonable use. It was also averred by the plaintiff that there was no relationship of landlord and tenant between him and the defendant. The defendant appellant by his written statement contested the suit. He contended that the redemption of the house by the plaintiff did not affect tenancy rights. He stated that he was ready and willing to pay the rent which was fixed at Rs.12/- per month. He denied that the plaintiff required the premises reasonably and bona fide for his personal use. He stated that the plaintiff had enough property in his possession for accommodating his family. He contended that the tenancy was not legally terminated and that he was protected by the provision of the Rent Control Act. He also stated that even though the suit appeared to be brought under the Bombay Rent Control Act, the plaintiff had alleged that there was no relationship of landlord and tenant between the parties and therefore, the defendant contended that the plaintiff should pay full court fee stamp on the market value of the property regarding which possession was sought. From the pleadings of the parties, the learned Judge framed issues at Ex.34. The learned Judge gave his finding on these issues and held that the plaintiff, did not require the suit premises for his personal use and occupation reasonably and bona fide. He also held that if a decree for possession was passed, greater hardship would be caused to the defendant. He held that the tenancy of the defendant was not legally terminated. On the findings on these issues, the learned Civil Judge dismissed the suit Against the said judgment and decree, an appeal was preferred in the District Court at Bhuj. At the time of the appeal, the defendant again gave an application Ex.8, bringing to the notice of the court that the court fee stamp paid by the appellant-plaintiff on the appeal memo was not adequate and therefore, the appeal should be dismissed. Thereafter, the court directed the plaintiff who was appellant in that appeal, to pay proper court fee stamp after valu