BHANDARI, J.—This is a civil second appeal in a suit for ejectment and arrears of rent.

2. The case set out by the plaintiffs is that the defendants had executed the rent note (Ex.1) in their favour on the 15th of October, 1946 after taking on lease the house property situate at Jodhpur and mentioned in detail in para No.I of the plaint. The defendants failed to pay rent for a long time and therefore two notices were served on them for ejectment and arrears of rent and ultimately the suit was brought on the 30th of October, 1950 in the Court of the Munsiff, City, Jodhpur for ejectment and arrears of rent. Two of the defendants, namely Nenuram and Shyamlal contested the suit, while the case proceeded ex parte against Mst. Soni who died during the pendency of this appeal and her name has been struck off. The main defence raised by the contesting defendants is that on the 15th of October, 1946 the defendants bad mortgaged the suit property with the plaintiffs for Rs. 5,500/- with interest at 6 per cent per annum and further executed the document (Ex.1) in favour of the plaintiffs to the effect that they will continue to pay Rs. 27.8.0 per month. That document is not a rent note but was written to ensure payment of interest to the plaintiffs. The plaintiffs could not base their claim for ejectment and of arrears of rent on that document. The trial court accepted the defence of the defendants and dismissed the suit for ejectment relying on a decision of Patna High Court in Baij Nath Prasad & Co. Vs. Jang Bahadur Singh & Co.(1). It, however, decreed the plaintiffs suit for Rs. 1,249.4.9 as arrears of rent. On appeal by the plaintiffs, the learned District Judge upheld the decision of the trial court as regards ejectment. Hence this second appeal on behalf of the plaintiffs.

3. The facts which are no longer in controversy in the second appeal are that the defendants had executed a mortgage deed in favour of the plaintiffs on the 15th of October 1946, the main terms and conditions of which are, as follows:—

1. That the interest on the mortgage money which comes to Rs. 27.8.0 @ 8% per annum shall be paid month by month by the mortgagors to the mortgagees.

2. That the mortgagors had delivered the possession of the mortgaged property to the mortgagees;

3. The mortgagees are authorised to make necessary repairs if the same are not done by the mortgagors;

4. That in case the mortgagors did not pay interest month by month, then after interest had become due for 6 months, the amount of interest shall form part of the principal on which interest at -/8/- annas per cent per month shall be payable.

5. The mortgagors shall have the right to recover the principal amount with interest and other charges by sale of the property mortgaged.

4. On that very day the mortgagors executed the registered quabuliat (Ex. 1) in favour of the mortgagees reciting therein that they had taken on lease the property described in lease deed at a monthly rent of Rs. 27.8.0. The defendants also agreed to vacate the house as and when desired by the landlord. Now both the lower courts have taken the view that the mortgage-deed and the rent note are part and parcel of one transaction and that the rent note was executed merely as a device to ensure payment of interest and as such, the plaintiffs were not entitled to get a decree for ejectment on the basis of the rent note. It may, however, be noticed that the courts below had decreed the claim of arrears of rent on the basis of the rent note. If the finding of the court below that the rent note was in-operative in the circumstances of the case is correct, the plaintiffs should not have been awarded any decree for arrears of rent on the basis of Ex. 1. There is thus this inconsistency in the judgments of the courts below.

5. Learned counsel for the appellants has argued that the courts were wrong in treating the mortgage deeds and the rent note as part of the same transaction. It is contended that by the mortgage-deed the plaintiffs

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