SUBAL RAM DUTT Vs. JAGADANUNDA MAZUMDAR

JUDGEMENT

(1.) This was a rule obtained by the Plaintiff calling on the opposite party to show cause why the order of the lower Court should not be set aside on the ground that the Judge was not precluded from dealing with the suit by Section 23 of the Small Cause Courts Act.

(2.) It appears that the Plaintiff brought a suit in the Small Cause Court of Sylhet against Defendant No. 1, making the Defendants Nos. 2 and 3 pro forma, Defendants, for the recovery of Rs. 176 and odd annas, alleging that the Defendant No. I mortgaged certain properties to Defendant No. 2 and the latter obtaining a decree on that mortgage and selling the mortgaged property in satisfaction of the decree, the Plaintiff purchased that property for himself. The Plaintiff further alleges that he was assured, that as a matter of fact that property had not been mortgaged previously to anybody else, nor was there any incumbrance on it, which fact also appears to have been mentioned in the mortgage deed in favour of the pro forma Defendant No. 2. The Defendant No. 1, it appears, had previously mortgaged the very same property to one Narayani Dasi, who instituted a suit against the Defendant No. 1 on the strength of that mortgage and obtained a decree. When the mortgaged property was about to be sold the Plaintiff paid the sum of Rs. 90, which was the first mortgage-debt, in order to save the property from being sold, and he alleges that he paid this money for the Defendant No. 1 for the purpose of saving the property, in which he had an interest by purchase and which was in his possession, from being sold. The Defendant No. 1 alleges that the Plaintiff's purchase was benami for one Ambica Churn Das, and that the money paid for that purchase belonged to Ambica Churn and not to the Plaintiff, and that he, the Defendant No. 1, has purchased the property from Ambica Churn Das, the real beneficiary of the sale, which stood in the name of the Plaintiff.

(3.) This suit was instituted in the Small Cause Court and the Judge presiding in the lower Court after hearing all the evidence in the case has come to the conclusion that the relief claimed by the Plaintiff depended upon proof of title to immoveable property. Hence, under Section 23 of the Small Cause Courts Act, he has returned the plaint to the Plaintiff to be presented to the Court having jurisdiction. As against this order the present rule was obtained.