KSHETRA NATH ADHIKARI Vs. DURGAPADA MANDAL

JUDGEMENT

(1.) These two suits have had a chequered career. They were instituted in October 1909 and the judgment of the trial Court was delivered in September 1910. On appeal to this Court a remand order was made in May 1916. The successor of the District Judge who heard the appeal on remand delivered his judgment in February 1918 upholding the decision of the trial Court, except in respect of certain properties, namely, plots Nos. 1 to 13 of schedule "Ka". The defendants Nos. 1 to 4, 6 to 9 and 11 to 13 are the appellants before us. The plaintiffs are the three sons of one Ramdayal Mandal. Two of them instituted one suit and the third the other. The properties in suit belonged to him. The learned Subordinate Judge who tried the original suits found that Ramdayal became indebted and in execution of a decree against him one Pratap Chandra Hazra purchased these properties but Ramdayal persuaded him and his brother, who was joint with him, to return those properties in consideration of a payment of Rs. 2,450 Ramdayal, however ever, had not sufficient - money and approached defendant No. 1, a creditor of his, and defendant No 2, an intimate friend, to help him. These defendants advanced Rs 1676.80 as a loan and Ramdayal himself paid Rs. (sic), and a kobala was obtained from the auction purchasers, in the names of those defendants on the 16th November 1897. After the purchase Ramdayal got possession of the properties and remained in possession for about one year, bat as he could not pay the interest on the sum advanced by the defendants, he put them in possession of the properties to enable them to take the profits until repayment of the debt due. The trial Court found that at the time of the hearing Rs. 1,569-11 9 were due to the defendants and gave the plaintiffs a decree for possession conditional on payment by them of the said sum within three months. He further held that the plaintiffs were not entitled to a decree for plots Nos. 1 to 13, which were sold for arrears of rent, as such arrears were for an earlier period, although the sale took place after the date of the kobala in dispute and the defendants were not liable to pay such arrears, and although they themselves purchased the plots upon such sale, they could not according to him be said to have purchased them, as trustees for Ramdayal or the plaintiffs.

(2.) On appeal the first District Judge held that the plaintiffs suit must be looked upon as based, firstly, on a trust or, secondly, on a usufructuary mortgage created at or about 1304 and inasmuch as, according to him neither the trust nor the usufructuary mortgage could be proved without a deed, he dismissed the suits.

(3.) The plaintiffs then appealed to this Court, which held that the learned Judge had fallen into an error inasmuch as the plaintiffs had brought their suits on title, and not on the basis of a trust or of a mortgage and added that of the District Judge had gone into the fact and found title in favour of the plaintiffs, it was obvious that the defendants could not resist their claim to possession "unless by advancing and establishing some such plea as limitation, mortgage or other," They remanded the appeals that all necessary facts might be ascertained.