NUR HOSSEIN SERANG Vs. TAMIJUDDIN

JUDGEMENT

(1.) S.A. No. 180 of 1938. - This appeal is concluded by the findings of fact of the lower appellate Court. The cross-objection relates to the land in Schedule 3 and is concerned with the form which the relief to be granted to the plaintiffs ought to take. The facts are these : This land originally belonged to defendant 8. It was sold in execution of a rent decree and purchased by one Nagendra. Nagendra sold part of it, in area 18 gandas, to defendant 1. He then sold the balance to one Ambica Bhattacharyya, who in his turn sold it to the plaintiffs. Defendant 8 instituted a title suit in connexion with this land. It was eventually compromised. By the compromise, defendant 1 and the plaintiffs surrendered half to defendant 8. No terms inter se were arranged between them as to the mode in which the balance was to be divided. It is clear that on these facts the plaintiffs cannot claim khas possession. They are really co- sharers with defendants 1 and 8. It is now agreed between the parties that the share remaining with defendant 1, after the com promise, is 9 gandas. As both he and the plaintiffs allowed defendant 8 to recover half, it is only reasonable to suppose that the intention was that they should each surrender half of their own respective interests. The result is that the appeal is dismissed with costs. The cross-objection is allowed and the decree of the lower appellate Court is modified. The plaintiffs will be given a declaration of their title to an eight annas share, minus 9 gandas belonging to defendant 1 in the lands included in Schedule 3 of the plaint and joint possession with defendants 1 and 8. There will be no costs in the cross- objection.

(2.) Second Appeal No. 338 of 1938 : This appeal is by the defendant. The plaintiffs instituted the suit in order to enforce two mortgage bonds executed in their favour by the defendant. Plaintiff 1 who at different times worked in Rangoon and Basra remitted Rs. 720 to the appellant on different dates between 21 June 1920 and 17 April 1926. The two mortgage bonds were executed on 24 October 1929 and 24 February 1930. The plaintiffs case is that the consideration for these mortgages was part of the money so remitted. The defence, on the other hand, contended that the transactions were benami and that no interest was conveyed by them to the plaintiffs. The Munsif dismissed the suit upon this view, but it has been decreed by the lower appellate Court.

(3.) Two points have been pressed in support of the appeal: (1) that the suit ought to be dismissed on the ground of res judicata and (2) that on the findings of fact there was no-legal consideration for the mortgages. In order to understand the former argument, it is necessary to refer to certain facts. The appellant also executed a sale deed and a lease in favour of the plaintiffs. "With regard to these transactions the plaintiffs case was that the consideration was the balance of the remittances. Similarly, the defence was that these two transactions also were benami and that no interest passed to the plaintiffs. In order to recover possession of the land conveyed by the kobala and the lease the plaintiffs instituted Title Suit No. 158 of 1936 in the Second Munsif's Court on 10 July 19S6. The Munsif accepted the defence of benami and dismissed the suit on 6 April 1937. The plaintiffs appealed, but their appeal was dismissed on 26 June 1937. There was a finding of fact that the plaintiffs story that these remittances were a loan to the appellant was false. The present suit was instituted in the third Court of the Munsif on 21 December 1936, and dismissed on 5 May 1937. The plaintiffs appealed. It was contended in the lower appellate Court by the appellant that the finding in the former suit regarding the story of a loan was res judicata. This plea was overruled by the Subordinate Judge. Apart from that, he considered the facts and came to the conclusion that the transactions were genuine.