ANANTA KUMAR MAITY Vs. SRI BISHNU PADA MONDAL

JUDGEMENT

(1.) This Second Appeal has been directed against the judgment and decree dated 17.6.1998 passed by the first appellate Court presided over by Sri A.K. Das, 1st Court, Contai in connection with title Appeal No. 48 of 1995 whereby the learned Judge was pleased to affirm the judgment and decree dated 23.7.1994 passed by Sri B. Banerjee, learned Civil Judge, (Junior Division), 1st Court, Contai in connection with Title Suit No. 128 of 1990.

(2.) It is stated in the grounds of appeal that the Courts below failed to raise proper issues and arrived at erroneous finding. The Courts below also erred in law in not properly considering the mandatory provisions of Order 20 Rule 5 of the Civil Procedure Code. It is also stated that the Courts below failed to consider that the purported deed of sale executed by the appellant/plaintiff on 5.7.1982 in favour of the respondent was a deed for security of loan in substance. It is also stated that the Courts below failed to consider the ratio decided and reported in the case of Chhabi Barui Vs. Debendra, Nath, AIR 1980 Calcutta 16 .

(3.) The fact of the plaint case in brief is that the defendant is the tenant under the plaintiff in respect of the suit property and the plaintiff/appellant being in need of money for repair of the household property took loan of Rs. 3,000.00 from the defendant/tenant and executed the ostensible sale deed. Subsequently when the plaintiff came out to repay the loan, the defendant turned his back and made out his case of out and out sale in respect of the suit property. It is also the case of the defendant that he had actually paid a sum of Rs. 7,000.00 to the plaintiff and not Rs. 3,000.00 towards the consideration money of the suit property. In this backdrop of the situation the following substantial question of law was formulated at the time of admission of the appeal :