SURIYA KUMAR DHAR Vs. GIRISH CHANDRA GHOSE

JUDGEMENT

(1.) This is a second appeal from the judgment; & decree of the learned Subordinate Judge, Sylhet (now Cachar), dated 27-7-42, by which he affirmed the judgment & decree of the trial Ct. which had decreed the pltf.'s suit for a declaration that a deed of lease (tahutnama) dated the 9th of Magb, 1941 B.S. executed in favour of one Surjyat Kumar Dhar by one Basanta Kumar Dbar, was not binding upon the pltf. Girish Chandra Ghose.

(2.) The facta material to the appeal are these. Basanta Kumar Dhar, deft, in the suit, had borrowed a sum of Rs. 1500 from the pltf. Girish Chandra Ghose, on the 3rd of Bhadra, 1334 B.S. on 3 mge bonds of Rs. 500 each. In due course, he brought a suit for sale of the mortgaged property to recover a sum of Rs. 3300 due to him on the mtge. bonds & obtained a decree for sale, & ultimately purchased the mortgaged property for Rs. 2936 in execution of his mtge. decree, & obtained delivery of possession through Ct. Shortly afterwards, he btougbt 8 rent suits on the strength of his purchase, against Surjya Kumar Dhar who in these suits alleged that he had obtained a settlement of 21 hals and 6 kears of land from Basanta Kumar Dhar (the mtgor.) by a tahutnama, dated the 9th of Magh, 1341 B.S. The suits were with-drawn by the pltf. & were accordingly dismissed. The pltf. then brought the present suit against Basanta Kumar Dhar and Surja Kumar Dhar as defts. 1 & 2 respectively, contending that the tahutnama executed by deft. 1 in favour of deft. 2 was fraudulent & collusive created to defeat the pltf.'s claim on the three mtges & aa such, it was not binding upon him. deft. 1 the mtgor. did not contest the suit. Deft. 2 contended that the tahutnama was a bona fide lease granted to him by deft. 1 in the ordinary course of management of the properties, reserving the best rent & was, therefore, binding on the pltf.

(3.) Upon the pleadings, the trial Ct. framed the following issues: