SARAT CHANDRA CHATTERJEE Vs. RAKHA HARI MUKHOPADHYAY

JUDGEMENT

(1.) This second appeal is preferred by the plaintiff who claims as against the defendants a declaration of title in regard to, and possession of, certain lands alleged to have been sold to him by the predecessor in interest of the defendants by a registered kibala dated the 22nd Baisakh 1312.

(2.) It appears that the price agreed upon was Rs. 45. At the time the deed was registered, the plaintiff paid Rs. 39. The deed after registration was taken by the predecessor of the defendants who has since died. It is stated in the plaint that there was an understanding between the plaintiff and the predecessor of the defendants that the deed should be delivered to the plaintiff on payment, to the predecessor of the defendants of Rs. 6 the balance of the purchase -money. The deed relates to two plots of land and the defendants plead that one of the plots has been fraudulently inserted in the kabala without the knowledge of the executant. As to the other plot they state in their written statement that there is no dispute. The plaintiff offered to pay the balance of the purchase-money to the predecessor of the defendants who refused to accept it and deliver the deed to the plaintiff.

(3.) In the Court of first instance, the case went to trial on the following issues: 1. Has the plaintiff cause of action for this suit? 2. Is the kabala relied on by the plaintiff a void document on account of fraud as well as for want of consideration? 3. To what relief or reliefs, if any, is the plaintiff entitled?" With reference to the first two issues, the principal question discussed in the judgment of the learned Munsif is whether or not the kabala was vitiated by fraud. This question he answered in the negative and gave the plaintiff a decree.