BIRENDRA NATH ROY Vs. SUKUMARI BAKSHI

JUDGEMENT

(1.) This Rule has been obtained by the deft, in a suit for rent. The plff. sued the deft. for rent at the rate of Rs. 9-4-0 per month for the period Kartick 1350 B. S. to Sravan 1352 B.S. She has given the deft, credit for the sum of Rs. 4-14-9 being the amount paid by him.

(2.) The plff's. case is that the deft, is her tenant at the rate of rent stated above & that he has fallen into arrears which she claimed.

(3.) The defence in the written statement was a very elaborate one & I must confess far from convincing. The deft, stated that he borrowed one thousand rupees from the plff's. husband. In order to avoid the provisions of the Bengal Money Lenders Act the wife of the deft., Surabala, & one Nani bala, the widow of the deft's. brother, executed a fictitious kabala on 17-6-1942 in favour of the plff. for the sum of Rs. 1,000/- transferring the property in respect of which rent is claimed to the plff. One month thereafter the deft. Birendra Nath Roy executed another fictitious document called a Bharapatra stating that he was a tenant under the plff. at a monthly rental of Rs. 9-4-0 for a period of three years. The intention of the parties was that this sum would be paid to the plff. as interest for the loan which would be returned after 3 years. The deft's contention is that there was no relationship of landlord & tenant between him & the plff. & that this suit is not maintainable. I may mention here that the suit was tried by a Munsif at Bongaon exercising powers of a Court of small causes. At the time of trial, the defence taken in the written statement was abandoned & only one point was argued. It was contended that the Bharapatra was not admissible in evidence as it was not executed by the plff. & the deft, but executed by the deft, alone. It was further contended that no oral evidence of the contents of the document could be given & that consequently the tenancy & rate of rent could not be proved. Section 107, T. P. Act & Section 91, Evidence Act were relied upon for these propositions. No evidence was adduced & no other argument was urged before the learned Judge of the Court of Small Causes.