KUNJA BEHARI DAS Vs. RAMAN BEHARI DAS

JUDGEMENT

(1.) This appeal has arisen out of a suit for enforcement of a mortgage. On 19 February 1926, one Nabin Chandra Das executed a mortgage bond for Rupees 2,500 in favour of the plaintiff, appellant in this Court. The plaintiff's claim in suit is based on the aforesaid mortgage. The plaintiff wanted to realise from the legal representatives of the deceased mortgagor, Nabin Chandra Das, the amount due on the mortgage executed by Nabin Chandra Das on 19 February 1926. It was mentioned in the plaint that besides the amount due on the mortgage in suit, there were other amounts due to the plaintiff on a hand note from Nabin Chandra Das, debtor, defendants 1 and 2, and Mathura Nath Das, and on a mortgage bond in the name of defendants 1 and 2 and Mathura Nath Das and on another bond which was not a mortgage bond executed by defendants 1 and 2, executors under the will of the late Nabin Chandra Das, by Brojonath Das and by Mathura Nath Das and others.

(2.) The claim in suit was resisted by defendants 1 and 2. In their written statement filed in Court, the contesting defendants admitted execution of the mortgage bond on the basis of which the plaintiff's claim in suit was made. The contesting defendants also admitted liability for the amount which the plaintiff mentioned in the plaint. It was pleaded however in defence that there was an amicable settlement between the plaintiff and the answering defendants and that the plaintiff had instituted the suit in contravention of the said settlement. It was asserted by the defendants in their written statement that the suit as instituted by the plaintiff was not legally maintainable. The arrangement of the amicable settlement, as mentioned in the written statement of the contesting defendants, was of this description that the plaintiff at the earnest request of the defendants and other respectable gentlemen agreed that by taking the lands mortgaged to him he would give up in favour of the defendants his claim for the entire amount due for principal and interest from these defendants and from their brother, the late Mathura Nath Das, from their uncle, the late Nabin Chandra Das, and from their cousin (uncle's son), the late Brojonath Das, on different bonds, of which mention was made by the plaintiff in the plaint filed in Court. On the pleadings of the parties, a number of issues were raised for determination in the case. Issue 2 was relating to the question whether the suit was maintainable in its present form. Issue 7 related to the maintainability of the same in law. The issue raised on the merits of the case was Issue 8: Is the contract alleged by the defendants to have been entered with the plaintiff true, and is the plaintiff bound by it?

(3.) The learned Additional Subordinate Judge of Sylhet who tried the suit gave his decision in favour of the defendants, after having come to the conclusion that the claim on the mortgage as made by the plaintiff in the suit was satisfied on a Rafa (adjustment). The trial Court dismissed the plaintiff's suit; and it was directed that the defendant must execute a kobala for the mortgaged lands in favour of the plaintiff within a fortnight, and deliver the same to the plaintiff either amicably or in a registered cover addressed to him, and the plaintiff would be in possession of the property thereby. The further direction contained in the decree passed by the trial Court was that in default, the plaintiff will enforce the contract in due course. The plaintiff appealed to this Court from the decision and decree passed by the trial Court, to which reference has been made above.