SHYAMAL KUMAR GHOSH Vs. NEMAI CHANDRA BAG

JUDGEMENT

(1.) Both the Courts below held that the purported sale -deed dtd. 17/2/1976 executed by the plaintiff-respondent in favour of the defendant-appellant is an out and out sale but a security given to the loan advanced by the appellant. It is relevant to record that the suit was decreed ex-parte and the appeal assailing the said ex-parte decree is also dismissed by the First Appellate Court.

(2.) The salient facts of the case as appears from the plaint annexed with the application (CAN 1 of 2022) are narrated as under:

(3.) The father of the plaintiff no. 1 respondents and the grandfather of the rest of the plaintiffs owned and possessed the suit property described in the schedule appended to the plaint as absolute owner thereof. The said original owner borrowed a sum of Rs.1000.00 from one Kishori Mohan Ghosh of the same village for a period of 3 years at the rate of interest of Rs.11.23 Per cent per annum by executing an ostensible deed of sale dtd. 13/7/1959 for Rs.1350.00 representing the principal amount of Rs.1000.00 and the interest at Rs.350.00. Upon payment of the principal as well, the interest the interest the said Kishori Mohan Ghosh re-conveyed the property by executing and registering a deed on 13/7/1959 in favour of the original owner. Subsequently, the plaintiff no. 1 felt dire need of money and took a loan from Satish Chandra Porel, the maternal uncle of the plaintiff no. 1 a sum of Rs.1500.00 on the rate of interest at Rs.16.23 per cent per annum by registering an ostensible deed of sale of Rs.2000.00 representing the principal sum of Rs.1500.00 and Rs.500.00 towards interest. The said Satish Chandra Porel subsequently re-conveyed the suit property by a registered deed of re-conveyance on 12/9/1970 after receiving the loan amount with interest. It is further averred that the plaintiffs faced the economic disaster and in order to meet the expenses of the necessity of life borrowed a sum of Rs.1500.00 on 17/2/1976 from the defendant being the son of the sister-in-law of the said Kishori Mohan Ghosh for a period of 3 years at the rate of interest at 11.1/9 per cent per annum upon executing an ostensible deed of sale dtd. 17/2/1976 depicting the total amount of Rs.2000.00 out of which the principal amount was shown as 1500/- and Rs.500.00 towards interest. It is stated in the plaint that the plaintiffs intended to repay the said amount and demanded the execution of the deed of re-conveyance which was refused on one pretext or another. It is further averred that despite the execution and registration of the purported ostensible deed of sale on 17/2/1976, the possession remained with the plaintiffs all along which would indicate that it was an ostensible sale for securing the loan taken by the defendant. It is also indicated in the plaint that taking advantage of the said ostensible sale the defendant-appellant fraudulently executed a deed of sale on 3/12/1979 in favour of one Somnath Mukhopadhyay who, in turn, filed title suit no. 329 of 1982 against the plaintiff no. 1 and the defendant-appellant herein for declaration of right, title and interests as well as the permanent injunction restraining the parties herein from creating any obstruction in the peaceful possession of the said property. The said suit was contested by the plaintiff no. 1/respondent and the Trial Court dismissed the said suit on contest holding that the said Somnath Mukhopadhyay did not acquire any right, title and interests in respect of the subject property nor is found in possession thereof. The judgment and decree passed in Title Suit no. 329 of 1982 was assailed before the First Appellate Court in Title Appeal no. 184 of 1996 which was dismissed for default on 8/8/1991 and till date no steps have been taken to restore the said appeal. The plaintiffs, therefore, claimed the relief in the form of declaration that the said ostensible deed of sale dtd. 17/2/1976 is not an out and out sale but a mortgage and also prayed for consequential relief in the form of the accounting and the payment thereof. Although the defendant appeared in the said suit but later on did not participate therein and ultimately the suit was decreed ex parte. In paragraph 18 of the written statement it is stated that the said Somnath Mukhopadhyay and the defendant are in fact enjoying the fruits of the schedule property and are in an actual possession thereof.