Tarun Kumar Gupta, J. - (1.) This Appeal is directed against judgment dated 30th March 1996 passed by S. K. Gupta, Additional District Judge, 6th Court, Alipore in Misc. Appeal No.323 of 1991 thereby affirming the order dated 10th of August, 1991 passed by Sri A. K. Das, Assistant District Judge, 7th Court, Alipore in Misc. Case No.18 of 1991.
(2.) The above case has a long drawn history which may be summed up as follows:-
(3.) The Title Suit No.54 of 1948 was filed by the third party purchaser against the predecessor in interest of the present appellants, of the respondents and others for partition in the Court of learned Subordinate Judge, 7th Court at Alipore. Kishori Mohan Das Bairagi (Defendant No.4) predecessor in interest of the present appellants by a registered deed of conveyance dated 21st September, 1955 sold his share to Jatindranath Das Bairagi (Defendant No.2) the predecessor in interest of the present respondents. Said Jatindranath also executed a `Ekrarnama' for reconveyance on the same date. On 19th September, 1961 final decree for partition was passed by 7th Court of Subordinate Judge at Alipore in Title Suit No.54 of 1948. One appeal being F.A. No.685 of 1966 was preferred in the Hon'ble High Court against decree dated 19th September, 1961. During pendency of hearing of said appeal three applications under Section 4 of Partition Act were filed in Hon'ble Court by three groups of co-sharers. On 17th February, 1989 Kishori Mohan Das Bairagi filed in the Hon'ble High Court an application under Section 37/38 of Bengal Money Lenders Act and later on it was filed in the Court of learned Munsif, 3rd Court, Alipore being Misc. Case No.9 of 1990 for reconveyance of property sold by him on 21st September, 1995 in favour of Jatindranath Das Bairagi claming said transaction as a loan transaction and not out and out sale. On 30th January, 1991 the Hon'ble Division Bench comprising Hon'ble Mr. Justice Mukhul Gopal Mukherjee and Hon'ble Mr. Justice D. K. Basu were pleased to allow some objections against the Commissioner's report, kept the appeal being F.A. No.685 of 1966 part-heard and pending and sent the case to the Trial Court with a direction to dispose of three applications under Section 4 of the Partition Act and also to adjudicate the respective claims of the parties in the application under Section 37 /38 of Bengal Money Lenders' Act. Accordingly Misc. Case No.9 of 1990 under Section 37 /38 of Bengal Money Lenders Act was transferred to the 7th Court of Assistant District Judge at Alipore for being heard analogously with Title Suit No.54 of 1948 and such Misc. Case was renumbered as Misc. Case No.18 of 1991. After contested hearing Misc. Case No.18 of 1991 was dismissed by the learned 7th Court of Assistant District Judge at Alipore vide Order dated 10.08.1991. In 1991 Misc. Appeal being No.323 of 1991 was preferred against the said order of dismissal dated 10th August, 1991. On 28th April, 1999 the Hon'ble Division Bench was pleased to affirm the judgment and final decree passed on 19th September, 1961. Misc. Appeal No.323 of 1991 was dismissed on contest by Additional District Judge, 6th Court Alipore vide judgment dated 30.03.1996 against which the present S.M.A. No.1 of 1997 has been filed in this Court.;