MON KOCH Vs. GUNESWARI BORA AND ORS.

JUDGEMENT

(1.) THIS is an application for revision under Section 115 of the Code of Civil Procedure directed against the judgment and decree passed by the learned Subordinate Judge, Lower Assam Districts, Tezpur, affirming the judgment and decree of the learned Munsiff Tezpur.

(2.) THE facts of the case which are amusing centre round an unholy controversy over a small loan of Rs. 500 advanced by the Plaintiff to no one else than his wife's younger sister's husband, the Defendant. The Plaintiff's case is that sometime on 28th Asarh, 1367 B.S., corresponding to 28 -7 -1960, he lent Rs. 500 to the Defendant, who executed a mortgage bond securing the loan. The bond which was impounded in the suit was an unregistered document. It is said, the Plaintiff was given possession of the land to enjoy the usufruct in lieu of interest until repayment of the principal. On the Plaintiff's demanding back the money, the Defendant invited him to his residence for repayment and the Plaintiff went there with the document. It is the Plaintiff's case that the Defendant tore the bond into three pieces without making any payment. The Defendant asserts that after receipt of the dues it was the Plaintiff who tore the document and while the torn pieces were still on the table, the Defendant had gone inside for something and he, on return from inside, neither found the Plaintiff nor the torn pieces of the document on the table. The Plaintiff, however, states that he made hue and cry about it and drew the attention of the neighbors and went to a teacher nearby to report about this episode. The teacher could not unite this sordid schism between the parties. The Plaintiff then approached the Anchalik Pancnayat without avail and hence his suit for recovery of the said loan with interest.

(3.) THIS being the position, there is not much force in a petition under Section 115 of the Code of Civil Procedure against the judgment and decree based on such a finding of fact Even so, Mr. J.P. Bhattacharjee, the learned Counsel for the Petitioner, contends that the decree is without jurisdiction on the ground that no suit for money would lie on the admitted position of the parties that there was a usufructuary mortgage deed evidencing the transaction. He further submits that this deed, although unregistered, can be looked into for collateral purpose under Section 49 of the Indian Registration Act and that according to him, will reveal a usufructuary mortgage.