ISMAILBHAI SARDARBHAI BHAGWAN Vs. KONDI RAVAJI PHADTARE

JUDGEMENT

(1.) THIS is an appeal filed by the plaintiff against the decree dismissing his Special Suit No. 6 of 1953 on the file of the Court of the Joint Civil Judge, Senior Division, Poona.

(2.) A few facts which led up to the institution of the present suit may be stated. One Chunilal Rupchand had obtained a money decree for Rs. 16,000 and odd against the present defendants and was executing the same in darkhast No. 284 of 1940. The defendants were making efforts to raise money necessary to satisfy the darkhast amount due to Chunilal. The darkhast was still pending in 1943. In 1943 the defendants approached the plaintiff and offered to transfer their musumhi garden situate in survey Nos. 344 and 346 at Bopgaon to be enjoyed by him for a period of 10 years for a consideration of Rs. 9,500. The plaintiff agreed to accept the offer, and accordingly on June 17, 1943, a registered agreement, which is styled as sale deed, was passed by the defendants in favour of the plaintiff, under which plaintiff was to go into possession of the garden and enjoy the same for a period of 10 years. Before the execution of this sale deed, an amount of Rs. 500 was paid as earnest to the defendants. Another amount of Rs. 4,500 was paid on the date of the execution of the sale deed. Thereafter some time in 1944 or 1945 a further amount of Rs. 2,400 was paid towards the satisfaction of the balance of the consideration which (balance) had to be paid: in certain instalments as mentioned in the sale deed. Plaintiff enjoyed the garden and reaped the fruit therein for the years 1944, 1945 and 1946. Then, plaintiff says that some time in August or September 1947 the defendantsunauthorisedly cut all the musumbi trees and made it impossible for him to reap the fruit and enjoy the garden for the remaining period of the term, as stipulated in the agreement dated June 17, 1943. Plaintiff, therefore, claims that he has suffered a loss on account of the breach of the agreement committed by the defendants, and says that he is entitled to an amount of Rs. 9,000 calculated at Rs. 1,500 per year as the income from the garden for six years till 1953. He has also claimed a further amount of Rs. 5,300, though it is by no means clear on what basis he has made that claim. In the plaint, however, the total claim is mentioned at Rs. 11,000, and it is this claim for which the plaintiff instituted the suit on January 15, 1953, in the Court below. The cause of action for the suit was stated to have arisen in August or September 1947 when the defendants unauthorisedly cut the trees.

(3.) THE defendants contended that the transaction embodied in the sale deed dated June 17, 1943, was a benami transaction and that the real transferee who took the sale deed from them was not the present plaintiff but their creditor Chunilal. They also contended that at all material times they were debtors within the meaning of the Bombay Agricultural Debtors Relief Act and that the plaintiff not having filed an application for adjustment of his debts under Section 4 of the Act, the debt due to him must be regarded as having been extinguished in view of the provisions of Section 15 of the Act.