Judgment Lalit Mohan Sharma, S. Shamsul Hasan, JJ. 1. The suit, out of which this second appeal arises, was originally filed by one Basant Lal, on whose death his heirs were a substituted. The subject-matter of the litigation is a shop bearing holding no.90, in the town of Biharsharif, detailed in the plaint which admittedly belonged to Basant Lal. On the 5th August, 1960, he executed an usufructuary mortgage (Ext.2) in respect of the suit shop in favour of the sole-defendant, Mohammad Ismail, who was occupying the premises from before, as a tenant. The term of the mortgage was mentioned as five years. It was said that the defendant should vacate by the 30th Shrawan, 1372 Fasli. 2. According to the case of the plaintiff he tendered the mortgage money and, on refusal, deposited the same under section 83 of the Transfer of property Act. He also served a notice under section 106 of the Transfer of property Act before filing the present suit. 3. The defendant resisted the suit on the ground that the earlier relational of landlord and tenant continued botween the parties and it was not and could not be modified as a result of the mortgage document (Ext.2 ). The trial Court held that the defendant continued to occupy the premises as a tenant on monthly basis and the tenancy was not reduced to that for any specified period. However, since the tenancy was lawfully terminated by notice under section 106 of the Transfer of Property Act, the defendant was liable to eviction. With regard to the effect of Exhibit 2 on the status of the defendant, the Court held that the transaction, being in violation of Sec.3 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, was liable and fit to be ignored. A decree for eviction, besides a money decree for arrears of rent, was passed. 4. On appeal, the lower appellate court held that the origin of the tenancy could not be ascertained. So far as Exhibit 2 is concerned, it was held not to be illegal on account of section 3 of the Bihar Buildings (Lease, rent and Eviction) Control Act. The Court recorded several vague and inconsisted findings, which, it is not practical to effectively analyse. So far as Exhibit 2 is concerned, it was held not to be illegal on account of section 3 of the Bihar Buildings (Lease, rent and Eviction) Control Act. The Court recorded several vague and inconsisted findings, which, it is not practical to effectively analyse. In one part of the judgment the Court has held that after the execution of the mortgage document, the relationship of landlord and tenant ceased to continue and the status of the defendant was that of a mortgagee out and out, governed by the provisions of the Transfer of Property Act. The Court then has said that the proper decree to be passed in the suit would be one for redemption, but, for technical reasons, that cannot be passed. Further, since it has been held that the notice to quit under section 106 of the Transfer of Property Act was legally served, eviction could be ordered. In respect of arrears of rent, the court has granted damages. With this modification, the decree passed by the trial Court was maintained. The defendant has now appealed. 5. Mr. Prem Lal, appearing for the appellant, has contended that the view of the lower appellate court that the relationship of landlord and tenant came to an end on execution of the mortgage document is not correct and, in any event, it cannot be assumed in the way in which it has been done. Reliance has been placed on a decision of the Supreme Court in the case of shah Mathuradas Manganlal and Company V/s. Nagappa Shankarappa Malaga and others (A. I. R.1976 Supreme Court 1965) and a decision of the Karnataka high Court in the case of Kamalama Muckanappa v G. S. Panduranga Rao, (A. I. R.1977 Karnataka 70 ). 6. Learned Counsel has rightly pointed out that the question whether the relationship of landlord and tenant is substituted by a fresh relationship of mortgagor and mortagagee is dependent on the facts in a given case as has been pointed out by the Supreme Court and all the relevant evidence and circumstances should be considered before coming to any conclusion. Alternatively, mr. Lal has urged that, if there is no relationship of landlord and tenant existent between the parties and a decree for redemption cannot be passed, as has been observed by the Court below, there was no option left, but to dismiss the suit. 7. Mr. Alternatively, mr. Lal has urged that, if there is no relationship of landlord and tenant existent between the parties and a decree for redemption cannot be passed, as has been observed by the Court below, there was no option left, but to dismiss the suit. 7. Mr. Rama Kant Verma, appearing for the respondents, has argued that in effect the lower appellate Court has upheld the relationship of landlord and tenant between the parties and on that basis the decree for eviction has been passed. are not in a position to agree to this submission, since, towards the end of paragraph no.15 of the Judgment the Court below has recorded its findings in the following terms : "hence it necessarily follows that since 6.8.1960, the date of execution of the zerpeshgi lease, there was a relationship of mortgagor and mortgagee between the parties and not a relationship of landlord and tenant between them within the meaning of section 11 of the b. B. (L. R. and E.) Control Act, 1947. Accordingly, the plaintiff and defendant had all the rights and liabilities of a mortgagor and mortgagee under the T. P. Act. " besides, if the defendant has to be treated as a tenant, grounds mentioned in section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947 (section 12 of the new Act) have to be established before a decree for eviction can be passed. Mr. Verma could not show us any finding to that effect. The position is that the judgment of the lower appellate Court cannot be sustained and the case has to go back on remand. In the circumstances, we do not consider it necessary or desirable to deal with the other questions argued by the learned Counsel for the parties before us. It has been jointly suggested and, in the circumstances rightly, that there should be an open remand to the lower appellate court and no opinion should be expressed at this stage by the high Court. 8. We accordingly allow this appeal, set aside the judgment and decree passed by the lower appellate Court and remand the case to it for disposal in accordance with law. There would be no order as to costs in regard to the second appeal. Appeal allowed.