KESHAB CHANDRA DAS AND ORS. Vs. ON THE DEATH OF SRIRAM CHANDRA DAG (PLAINTIFF) HIS LEGAL REPRESENTATIVES (MACIHAB CHANDRA DAS AND ORS.) AND ANR.

JUDGEMENT

(1.) THIS second appeal is on behalf of the principal Defendant. The Plaintiff brought a suit for declaration of his right and title over the suit land measuring 2 Kathas 12 1/2 lechas in Barpeta town described in schedule Kha to the plaint. This land originally belonged to the principal Defendant, who sold the same to the Plaintiff by executing a registered sale deed on 11 -2 -43 for a consideration of Rs. 1,000/ -. The Defendant had his houses over the suit land and although it is recited in the document that possession was delivered, he took permission from the Plaintiff for removal of his houses within 6 or 7 months and the Plaintiff agreed to the same. The Plaintiff got his name mutated in the record of rights. The Defendant was unable to remove the houses within that time and requested for permission to continue there and on 14 -8 -43 he executed an unregistered kabuliyat in favour of the Plaintiff agreeing to pay a rent of Rupees 5/ - per month and stay there for one year after which he will remove his houses without notice. The Plaintiff agreed to the said arrangement.

(2.) THE Defendant admitted to have executed the sale deed on 11 -2 -43 but stated that that was not a genuine sale but only a benami transaction to save the property from his creditors. He avers that the Plaintiff was his class -mate from school and a special friend and, therefore, he in honest belief put his trust on him and made this benami transaction. He also stated in paragraph 9 of his written statement that the property in suit at the time of alleged sale was in much worse condition than it was at the time of his filing the written statement and that the Defendant had "improved the property at his own costs several times". Defendant also admitted to have executed the three kabuliyats but stated that these were part of the Defendant's benami sale to the Plaintiff in order to give a colour of genuineness to the benami transaction. He stated that no rent was ever paid to the Plaintiff and he denied to have made the various promises attributed to him. He questioned the validity of the notice and also the pecuniary jurisdiction of the court stating that the land in suit was of the value of more than Rs. 4,000/ -.

(3.) THE Defendant took an appeal to the Subordinate Judge and there was also a cross objection filed by the plain -till with regard to the refused rent. The Subordinate Judge set aside the decree of the Learned Munsiff and remanded the suit to him for fresh disposal by deciding the following issues, namely: