ABDUL HASAN Vs. MTWAJIH-UN-NISSA

JUDGEMENT

(1.) This is an appeal from a decision of the First Additional District Judge of Gaya, affirming the decision of the Second Subordinate Judge at Gaya in a suit in which the plaintiff, the appellant here, claimed a declaration for the return of a sale deed, and in the alternative, if his own plea of possession be not successful, recovery of possession of the property which consisted of 8.12 acres of land.

(2.) The facts leading to the suit are shortly that on 17-7-1932, the plaintiff mortgaged the land in dispute to defendant 1 for a sum of Rs. 600. Thereafter, the landlord obtained a rent decree against the plaintiff and in order to avoid the sale of the property defendant 1 deposited in Court the decretal amount. In money Suit No. 39 of 1935, defendant 1 sued the plaintiff for recovery of the amount so deposited and obtained a decree therefore. At a sale held in execution of that decree on 26-2-1937, defendant 1 purchased the property for Rs. 200 and on 26- 8-1937, he got delivery of possession.

(3.) The plaintiff's case was that the sale processes had been suppressed and that when in December 1937, he learnt of the fraud, defendant 2, who is the husband of defendant 1 in order to avoid proceedings by the plaintiff for the setting aside of the sale, offered to re-convey the property to the plaintiff if ho would pay the amount then outstanding on the mortgage bend of 17-7-1932, plus the sum of Rs. 200 for which the property was sold to his wife, defendant 1. This the plaintiff agreed to and having collected alt the necessary n monies except Rs. 200 it was thereafter agreed that the plaintiff should pay the defendants these monies and should execute a rehan bend in respect of part of the property in question for the sum of Rs. 200. On 16-1-1938, the plaintiff paid Rs. 200, being the price of the land and Rs. 1050 towards the mortgage dues and a sale deed was executed by defendant 1 in favour of the plaintiff and the plaintiff executed a rehan bend in favour of defendant 1, defendant 2 promising to return to the plaintiff the documents relating to the old mortgage of 17-7-1932. On the same day, the sale and the rehan bend were presented for registration before the Sub-Registrar, Gaya, and defendant 1 admitted the execution of the sale-Seed before the Registrar and it was duly registered. The rehan bend, however, war not registered by the plaintiff because, as he alleged, the defendants, after executing and registering the sale-deed, refused to make over to the defendants the said documents relating to the old mortgage and in spite of repeated demands, put off the return of these documents. Therefore, on 31-1-1988, the rehan bend was returned to the plaintiff by the Sub-Registrar. The plaintiff alleged that he thereafter sent a registered notice to the defendants to get the rehan loud registered and to make over the document and the sale-deed but the defendants refused.