MAHENDRA MALLIK Vs. BRUNDABAN DAS

JUDGEMENT

(1.) Defendant is the appellant against a reversing, judgment. The suit was filed for a declaration that the document (Ext. A) executed on 19-1-1968 by the plaintiff though purported to be a sale deed conveying title was actually a deed of mortgage and for a direction to the defendant to re-transfer the property conveyed to him under the so-called sale deed after obtaining necessary permission from the Sub-Divisional Officer.

(2.) According to the plaint case, as he was in need of money to purchase certain homestead land from one Malati Debi, the plaintiff approached the defendant for a loan of Rs. 1,500/- by mortgaging the property in question. Defendant agreed to advance the loan, but insisted that plaintiff should execute a sale deed and further orally agreed that the document would be treated as a deed of mortgage for all practical purposes and he would re-transfer the property or receiving the loan amount plus interest at the rate of nine per cent per annum. With this understanding the plaintiff executed the deed on 19-1-1968, but did not deliver the possession of the land as it was intended to be a deed of mortgage. Plaintiff repaid Rs. 1,300/- to the defendant and approached the defendant for calculation of interest so that he could pay up the balance amount and get a deed of re-transfer from the defendant, but the defendant refused to re-transfer the suit property. Hence the present suit.

(3.) The defendant denied the allegations made in the plaint and contended that the document executed On 19-1-1968 was a sale out and out which the plaintiff had executed after receiving the consideration money thereof and it was never intended to be a deed, of mortgage as alleged in the plaint According to the further defence case, apart from the consideration money of Rs. 1,500/-under the sale deed in question, the plaintiff wanted another Rs. 1,000/- and executed a handnote for the said sum and took the amount. The sum of Rs. 800/- sent by the plaintiff to the defendant by post was towards re-payment of the aforesaid loan amount of Rs. 1,000/- and had got no connection with the consideration money under the impugned sale deed. He also averred that he was in possession of the land pursuant to the sale deed (Ext. A).