V. R. NEWASKAR, J.

( 1 ) THIS is an appeal against an order of remand passed by the Additional District judge Indore under Order 41, Rule 23, C. P. C.

( 2 ) THE facts giving rise to this appeal are as follows : plaintiff filed this suit for ejectment and arrears of rent amounting to Rs. 960/- on the allegation that the defendant mortgaged with him his house in Chowk Bazar Mahidpur Ward No. 1 House No. 163 on 20-41950 "under a deed of usufructuary mortgage duly registered for a consideration of Rs. 8000/- and delivered possession to him on that day; that out of the aforesaid property possession of the portion of the house mentioned in Para No. 1 of the plaint was actually given possession of to the plaintiff and that the remaining portion of the house was taken by the defendant on Rs. 30 P. M. as rent; that four days later i. e. on 20-41950 the defendant executed a rent-note in plaintiffs favour in respect of that portion; that the defendant thereafter did not pay any rent; that the plaintiff thereupon gave notice to him on 22-10-1952 calling upon him to pay the arrears of rent and vacate the premises by the end of the current month; that in spite of the notice the defendant neither paid the arrears nor vacated the premises. The plaintiff therefore claimed Rs. 960/- as arrears of rent up to 20-12-1952, ejectment and further mesne profits.

( 3 ) THE defendant in his written statement denied the creation of the mortgage by a deed dated 20-4-1950, delivery of possession of any portion of his property and execution of a rent-note in plaintiffs favour on 24-4-1950 for Rs. 30/- P. M. He admitted the receipt of plaintiffs notice and stated that the same had been replied to. He also raised questions relating to court-fees and the suit not being within pecuniary jurisdiction of that Court.

( 4 ) IN the alternative the defendant pleaded that the mortgage deed even if held to have been made was sham and bogus and had been intended to save the property from his creditors. The transfer was, according to him, made as a result of plaintiff's inducement and on his assurance that the deed was valueless for affecting him adversely. He further contended that the mortgage transaction itself being bogus the rent-note too is so and is ineffective. Defence under Madhya bharat Sthan Niyantran Vidhan was also taken.

( 5 ) AS a result of these pleadings the Court framed issues. Issue No. 9 was to the following effect: whether the rent-note was compulsorily legistrable and if so whether the plaintiffs suit is not maintainable?

( 6 ) THIS issue was treated by the trial Court as preliminary and that Court relying upon the decisions of Madhya Bharat High Court in Wamanrao v. Gopaldas, Madh-B LR 1953 Civil 123 (A) and Calcutta High Court in Nabin Chandra v. Rajendra kumar, AIR 1936 Cal 302 (B) and Atul Krishna v. Zahed Mondal, AIR 1941 Cal 102 (C), dismissed the suit.

( 7 ) AS against this decision the plaintiff preferred appeal. The appellate Court set aside that decision holding that in the first place the plaintiff had alleged an oral tenancy dated 20-4-1950 attended with delivery of possession and subsequent execution of rent-note dated 24-4-1950 and secondly that it was a unilateral document not amounting to lease as contemplated by Section 107 of the Transfer of Property Act and did not require registration. It therefore came to the conclusion that the dismissal of the suit was improper. It therefore remanded the suit for decision on other issues left undecided.

( 8 ) THE present appeal is directed against that order of remand.

( 9 ) THE case had come up before me earlier as a Judge of the Madhya Bharat High court. In view of two conflicting decisions of the single Judges of the Madhya bharat High Court on the question under consideration I referred the case to a division Bench. After the abolition of the Madhya Bharat High Court the case was placed for disposal before myself and Dixit J. We held that in the changed context the reference was rendered un

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