RANJIT SARKER. Vs. SREE SUKHENDU BIKASH BISWAS

JUDGEMENT

(1.) This appeal by leave has been preferred by defendant Nos. 6(ka) - 6 (uma) against the judgment and decree dated 27April 1994 of a Division Bench of the High Court Division in F.A. No. 11 of 1984 (Chittagong), subsequently renumbered 323 of 1991 (Dhaka), which, reversing those of the Subordinate Judge, Patiya, decreed the plaintiff's suit, Other Suit No. 163 of 1981 in part.

(2.) The patent facts are that the suit homestead with its adjuncts and adjoining thank, ditch etc. originally belonged to Kailash Dey. Kailash was survived by his two sons Krishna Chandra and Kshetra Mohan. Krishna Chandra at his death left behind his three sons, plaintiff Sudhendu, defendant No. 3 Nirmalendu, Ardhendu and Purnendu, besides his widow, defendant No. 4 Kiron Bala. Ardhendu and Purnendu died unmarried to be succeeded by his two surviving brothers- the plaintiff and defendant No. 3. Krishan died leaving behind one son defendant No. 2 Kanu and his widow. Defendant No. 5 Kanu executed a deed of sale (Ext.4) on 1 August 1979 which was registered on 12 September 1980 in favour of defendant No. 1 Chandra Shekhar Mallick who was a stranger to the holdings to which the suit property appertains for a consideration of Tk. 8,000/=. On 23 November 1979 when the deed of sale dated 1 August 1979 was presented for registration a deed of agreement for reconveyance of the property under sale (Ext. D) was executed by defendant No. 1 on stamp purchased by him on 19 October 1979 stipulating that he would recovery the property whenever he received back the consideration money. On 28 July 1980 defendant No.1 executed and registered two deeds of reconveyance in respect of the property in favour of defendant No.2 who in his turn on the same date executed and registered two deeds of sale in favour of defendant No.6 Suresh and his mother defendant No. 7. 2. On 29 September 1980 the plaintiff brought the suit in the Court of Munsif at Patiya which was subsequently transferred to the Court of Subordinate Judge of that place for pre-empting the suit property and also for declaring that the two registered deeds of reconveyance executed by defendant No.1 in favour of defendant No.2 on 28 July 1980 as well as the two deeds of sale executed by defendant No. 2 in favour of defendant No.7 on the same date were colourable deeds without consideration. The plaintiff claimed that the deed of sale dated 1 August 1979 was a deed of out and out sale and that he was a co-sharer in the suit holdings and defendant No. 1 was a stranger thereto.

(3.) In course of the proceedings of the suit defendant No. 6 died and his heirs were substituted in his place as defendant Nos.6 (ka) 6(uma). Defendant No.1 filed a written statement supporting the case of the plaintiff while defendant No.2 and defendant Nos. 6 (ka) - 6(uma) and defendant No. 7 contested the suit. Their contention was that the deed of sale under pre-emption was in fact a deed of mortgage to secure a loan of Tk. 8,000/-on repayment of which defendant No.1 had reconveyed the suit property to defendant No.2 by the two deeds of reconveyance. Again defendant No. 2 sold the suit property to defendant No.6 (since deceased) and his mother defendant No.7 on receipt of the consideration of Tk.72,000/-. In substance the defence case was that the deeds assailed by the plaintiff were not colourable deeds but genuine deeds.