MAHAMMAD ISA Vs. JOHORA KHATOON

JUDGEMENT

(1.) This second appeal is directed against judgment and decree dated 8th January, 1985 passed by the learned Additional District Judge, 2nd Court at Howrah in Title Appeal No.269 of 1983 affirming the judgment and decree dated 19th August, 1983 passed by the learned Sub-Ordinate Judge, 2nd Court at Howrah in Title Suit No.83 of 1983.

(2.) Present appellants together with their mother Jobeda Bibi filed said suit being heirs of Yunush. The plaintiffs' specific case was that the holding No.23, Nanda Ghosh Road, P.S. Golabari, District Howrah was owned by Ilahi Box as thika tenant. Ilahi Box had three sons namely Abdul Oyhid, Md. Yunish and Md. Ahia. Abdul Oyhid pre-deceased his father Ilahi Box leaving son Md. Yousuf (defendant No.1). Ilahi Box died in 1946 and on his death, his two surviving sons namely Md. Yunush and Md. Ahia inherited said holding No.23, Nanda Ghosh Road in equal shares. Md. Yousuf (defendant No.1) later purchased the share of Md. Ahia (defendant No.2) and the plaintiffs and defendant No.1 were in ejmali possession of the property.

(3.) In 1947 Md. Yunush borrowed a sun of Rs.350/- from the defendant No.1 executing an ostensible sale deed for Rs.300/- on 9th July, 1947. On the same date a deed of reconveyance was also executed by the defendant No.1 in favour of Md. Yunush. Md. Yunush was in possession of the property till his death in 1965 and after his death, the plaintiffs as his heirs were in possession of the same. The defendant No.1 being instigated by some outsiders tried to dispossess the plaintiff. The plaintiffs then asked the defendant to produce accounts towards said loan transaction of 1947. As defendant No.1 refused to render any accounts, the suit was filed for declaring that the transaction dated 9th July, 1947 in between Md. Yunush and Md. Yousuf was nothing but a loan transaction and mortgage by conditional sale and that the transaction should be reopened to quantify the amount to be paid by the plaintiffs to the defendant No.1 towards loan and interest and also for partition of the suit property declaring plaintiffs' half share therein with other consequential reliefs.