LALBATI KUER Vs. SATCHITANAND VERMA

JUDGEMENT

(1.) IN the suit out of which this, appeal arises the plaintiff prayed for redemption of a Sudhbharna bond dated 22-7-1909, executed by the ancestors of the defendants second party in favour of the mother of the defendant first party with respect to 3 bighas 19 kathas 1 dhur of land. It was alleged that the plaintiff purchased the mortgaged property from the defendants second party by a registered sale deed on 6-5-1939. The suit was resisted by the defendants first party who alleged that on 25-3-1939, there was a contract for sale executed by the defendants second party in favour of the defendant first party with regard to the disputed land. The suit was dismissed by the Munsif on the ground that the plaintiff did not acquire any title under the sale deed because there was no consideration given and also because the plaintiff made the purchase with notice of the agreement for sale made in favour of the defendant first party. The plaintiff took the matter in appeal, but the appeal was dismissed by the lower appellate Court on the ground that the plaintiff had acquired no title under the sale deed because no consideration was paid. When the matter came to the High Court in second appeal (Second Appeal No. 2510 of 1946), Sinha J., remanded the case on the ground that the finding of fact with regard to the passing of title of the plaintiff was vitiated and the appeal should be reheard by the lower appellate Court. After remand the Subordinate Judge came to a finding that the plaintiff acquired a good title under the sale deed and that she made the purchase without notice of the agreement for sale with the defendant first party. The subordinate Judge accordingly granted a decree to the plaintiff for redemption of the disputed land. The matter was again taken up in second appeal to the High Court, and Misra, J., who heard the second appeal remanded the case again to the lower, appellate Court for consideration of the question whether the agreement for sale upon which the defendants second (?) party relied was a genuine transaction and whether the agreement for a sale was executed on the date on which it was alleged to have taken place, The learned Subordinate Judge who heard the appeal on remand reached the conclusion that the Mahadanama (Ext. F) was a genuine document and that it was executed on the date on which it was alleged to have been executed and accordingly the learned Subordinate Judge dismissed the suit for redemption.

(2.) IN support of the present second appeal learned counsel contended that even if the Mahadanama was a genuine document the suit of the plaintiff could have been dismissed. It was contended that a contract to sell immoveable property was a mere contract and did not create in itself any interest or charge on such property under section 54 of the Transfer of Property Act. It was, therefore, argued that the suit of the plaintiff for redemption cannot be defeated merely because the defendant first party had a contract for sale in his favour prior to the purchase of the plaintiff. We do not think it is open to the appellant to raise this point at this stage. The reason is that the judgment of Misra, J., dated 22-12-1953, has finally disposed of all the matters in controversy between the parties except the point with regard to the genuineness of the mahadanama. Except with regard to this point all the matters in controversy between the parties have been decided by the learned Judge, and those points cannot, therefore, be re-opened on the principle of constructive res judi-cata. The relevant portion of the order of Misra, J., dated 22-12-1953, in Second Appeal No. 1950 of 1949 is reproduced below :