BHABOOT MAL Vs. SENS MAL

JUDGEMENT

(1.) THIS is a revision application by the defendant against a decision of Munsif. Bali, on issue No. 5 holding that he is estopped from pleading that the sale deed of the house and the rent note were ostensible, bogus and collusive.

(2.) THE plaintiff brought the pre-sent suit against the defendant for recovery of arrears of rent and for ejectment, on the ground that the tenancy has been terminated by a valid notice. It was alleged in the plaint Chat the house in suit belongs to the plaintiff and had been purchased by him and that it was in his possession. It was also alleged that the defendant took the house on rent of Rs. 50/- per month on 2-4-1959, and executed a rent note.

(3.) THE suit was contested by the defendant. He alleged that he was heavily indebted and in order to defraud the creditors he executed a fictitious sale deed and a fictitious rent note in favour of the plaintiff in collusion with him and that this was only done to save the property from the creditors. It was further pleaded that the possession over the house was never given by the defendant to the plaintiff and that the intention of the parties in executing the sale deed and the rent note was to debar the creditors from, selling it in execution of their decrees. It was also pleaded that Mahendra Silk Mills Ltd. . Bombay, got the house in suit attached and put to auction, but through, the intervention of the plaintiff a compromise was arrived at by him on payment of Rs. 11,000/- and that this sum was borrowed by him from the plaintiff and was paid to the creditors and that the sale deed was executed by way of security for the repayment of that sum. The pleadings of the defendant are no doubt confused but a perusal of the written statement goes to show that he also pleaded that the relationship of landlord and tenant never existed between him and the plaintiff. It is contended on behalf of the defendant that Section 116 of the Evidence Act presupposes that the person affected by the estoppel is a tenant and that it is open to the defendant to show that he was never a tenant of the plaintiff. The decision in Sk. Rashid v. Hussain bakash. AIR 1943 Nag 265 was referred to in support of this proposition.