JAGARNATH SINGH Vs. BUTTOKRISTO RAY

JUDGEMENT

(1.) This is an application by the defendants for leave to appeal to His Majesty in Council from a decision of a Division Bench of this Court. It is alleged that the judgment of this Court is not a judgment of affirmance and that the value of the subject-matter in dispute at the time of the suit and at the time of the appeal to the Privy Council was over Rs. 10,000. The opposite party contests both these allegations.

(2.) The property in dispute is village Chainpur which belonged at one time to Palganj Estate of which defendant 1 is the proprietor, but his estate is managed through the manager of the encumbered estates, defendant 2, since, July 1940. On 17 February 1930, this village was sold in execution of a decree obtained against the then Raja of Palganj Estate and purchased by Rameshwar Lal, who executed a sale deed on 27 November 1931 for Rs. 7,250 in favour of the plaintiff. At the same time, the plaintiff executed an agreement in favour of the Raja by which he agreed to convey the village to the Raja within three years on certain terms. The plaintiff remained in possession till 10 December 1940 when in accordance with an order of the Deputy Commissioner of Hazaribagh dated 1st November 1941 possession was delivered to the manager of the encumbered estate. The plaintiff thereupon brought a suit for recovery of possession on declaration of his title.

(3.) The defence to the action in the main was that Rameshwar Lal, the vendor of the plaintiff, was the benamidar for the Raja both at the time of his purchase in February 1980 and at the time he executed the sale deed in favour of the plaintiff in 1931, that the sale deed together with an agreement by the plaintiff to re- convey the property amounted to a mortgage by conditional sale and, therefore the manager had lawfully taken possession of the village on removal of the plaintiff,