Subhro Kamal Mukherjee, J. - (1.) THIS second appeal is directed against the judgment and decree dated March 31, 1979 passed by the learned Additional District Judge, Fourth Court, Midnapore in Title Appeal No. 17 of 1975 reversing those dated December 7, 1974 passed by the learned Munsif at Danton in Other Suit No. 105 of 1972. The plaintiff/respondent, on June 28, 1972, instituted Other Suit No. 105 of 1972 for declaration that the kobala dated September 25, 1964 was an ostensible sale deed and for, further, declaration that the transaction between the parties was in substance loan transaction and for reopening of such transaction and for accounting under the Bengal Money -lenders Act, 1940. The said plaintiff alleged that he was a poor man while the defendant was a rich money -lender and as the plaintiff was in need of money for meeting his domestic needs, he approached the defendant in the month of Chaitra 1370 B.S. for grant of a loan Rs. 500/ - (Rupees five hundred) only. The defendant agreed to advance the said sum of Rs. 500/ - (Rupees five hundred) only subject, however, to payment of interest at the rate of 15% per cent per annum and stipulated that the plaintiff should deposit a blank stamp paper of Rs. 1.50 paise with his left thumb impression as also the dakhila concerning the" suit plot towards security for the said loan. The plaintiff was asked to repay the loan by Bhadra 1371 B.S. Pursuant to such agreement the plaintiff obtained a loan of Rs. 500/ - (Rupees five hundred) only from the defendant on April 6, 1964 and handed over a blank stamp paper of Rs. 1.50 paise and a cartridge paper with his left thumb impressions as also the dakhila. As the plaintiff was unable to repay the loan with interest within the stipulated period of time, he approached the defendant for extension of time to repay the loan. The defendant agreed to grant time to the plaintiff, but asked the plaintiff to execute an ostensible sale deed in respect of the suit land as security for the loan. It was alleged that the said deed of sale was executed on September 25, 1964 ostensibly conveying the suit property for Rs. 1000/ - (Rupees one thousand) only, but the document was executed as security for the loan and the plaintiff continued to possess the suit properties. The kobala was prepared using the said blank stamp paper of Rs. 1.50 paise and the cartridge paper deposited by the plaintiff with the defendant while he took the loan from the defendant. It is alleged that the plaintiff approached the defendant for accounting, but the defendant denied the title of the plaintiff and threatened to dispossess him. The plaintiff paid rent in respect of suit land up to 1375 B.S., but, at the instance of the defendant, local Tahasildar refused to accept the rent from the plaintiff in the year 1376 B.S.
(2.) THE defendant contested the suit and in the written statement contended that the transaction evidenced by the kobala dated September 25, 1964 was an out and out sale and the defendant actually purchased the suit properties from the plaintiff on payment of Rs. 1,000/ - (Rupees one thousand) only which was the actual market price of the properties and that the defendant was in possession of the suit properties. It is stated that the plaintiff voluntarily executed the kobala in favour of the defendant and there was never any transaction of loan between the parties. The learned Munsif by the judgment and decree dated December 7, 1974 dismissed the suit.
(3.) THE plaintiff being aggrieved preferred Title Appeal No. 17 of 1975 in the court of the learned District Judge, Midnapore, which was eventually transferred to the court of the learned Additional District Judge, Fourth Court, Midnapore.;