ABDUL GAFFAR Vs. SUDHA KANTA ROY

JUDGEMENT

(1.) This second appeal is directed against the judgment and decree passed by the learned Subordinate Judge, 2nd Court, Hooghly in Title Appeal No. 277 of 1975 reversing the judgment and decree passed by the learned Munsif, 1st Court, Serampore in Title Suit No. 77 of 1973, and dismissing the suit.

(2.) Plaintiff filed the suit for declaration that the transaction effected between the parties by the ostensible sale deed and the agreement for reconveyance in respect of the suit property on 26-4-1971 was a loan in substance and for restraining the defendants from disturbing plaintiffs possession in the suit property together with a prayer for the relief under Ss.36 and 37 A of the Bengal Money Lenders Act, 1940.

(3.) It was the case of the plaintiff that he took loan of Rs. 1000/- from the defendant 1 and as security for the loan plaintiff executed an ostensible sale deed in respect of the suit property in favour of the defendant 1 reciting therein Rs. 1450/- as the consideration money including the advance interest of Rs. 450/- on 26-4-1971 corresponding to 12th Baisakh 1378 B.S. and the defendant 1 executed an agreement for reconveyance on the same date. The possession in the suit property remained with the plaintiff. The market value of the suit property was Rs. 3000/- at the relevant time. Plaintiff delivered 12 maunds of paddy to the defendant 1 towards the interest in 1378 B.S. Plaintiff offered Rs. 100/- to the defendant 1 towards the interest in 1378 B.S. Plaintiff offered Rs. 100/- to the defendant 1 towards the interest and the principal for the next year but the defendant 1 refused to accept the same on 1-4-1973. The plaintiff filed the suit. During the pendency of the suit, plaintiff came to know that defendant 1 had sold the suit property to the defendant 2 by a collusive and fraudulent sale deed and accordingly the defendant 2 was impleaded in the suit.