KHETRA MOHAN DAS Vs. BISWA NATH BERA

JUDGEMENT

(1.) This appeal arises out of a suit for accounts and is directed against an order of remand made by the learned Additional District Judge of Midnapur.

(2.) The facts of the case have been shortly stated as follows in the judgment of the Court of First Instance: This is a suit for accounts. The plaintiff's case is that the defendant No. 1 was Gomastha under the pro forma defendant No. 2 in Mouzas Barkola and Mirzapore and that he executed a security kabuliat for his work in favour of the pro forma defendant on the 7 Kartick 1306 A.S. mortgaging the plaint schedule properties and on the strength of that kabuliat he did the Gomostha work from Kartick 1306 to Magh 1327 A.S., that on the 5 Falgun 1327 A.S. the pro forma defendant No. 2 sold off to plaintiff all his rights in the two Mouzas together with his rights to get accounts and papers from defendant No. 1 and to recover from him the sums due thereon, by a registered kobala taking due and proper consideration thereof, that on the basis of the security kabuliat this defendant No. 1 was to submit all collection papers and explain those and pay off all sums found due thereon and he was to be liable for all rents and decretal dues barred by limitation owing to his default and to get 1 rupee 4 annas monthly pay for his work: that the defendant No. 1 submitted and explained his accounts and papers till 1309 A.S. to pro forma defendant No. 2 and from 1310 A.S. he submitted no accounts and papers to him except a thoka only of 1327 A.S. and as per hisab given in Schedule "Ka" of the plaint the plaintiff, on the basis of the kobala in his favour, asks for such accounts and papers provisionally valuing his claim at Rs. 937-15 annas 18 3/4 gandas. It is also stated in the plaint that after the plaintiff's kobala such accounts and papers were demanded from defendant No. 1 on 11 Falgun 1327 A.S. but no such accounts were submitted.

(3.) The learned Munsif, on a construction of the deed of sale, held (i) that the plaintiff did not purchase the rights of defendant No. 2 under the mortgage kabuliat executed by defendant No. 1 in favour of defendant No. 2, and (ii) that the plaintiff, if he purchased anything at all, purchased the right to sue for accounts, which is unassignable under Section 6(e) of the Transfer of Property Act. In the result he dismissed the suit. On appeal the learned Additional District Judge reversed both these findings and remanded the case for determination on the merits, which, in the circumstances of this case, must mean for taking accounts from the defendant No. 1.