- (1.) This second appeal is directed against the judgment and order dated 7th July, 1989 passed by the learned Additional District Judge, 2nd Court, Howrah in Title Appeal No. 93 of 1986 by which the judgment and order dated 31st March, 1986 passed in Title Suit No. 162 of 1980 of the 1st Additional Court of Munsif, Howrah was reversed.
(2.) The plaintiffs are the legal heirs of one Bindadin Tiwari. The plaintiffs' case in brief is that the said Bindadin Tiwari was a thika tenant in respect of the suit land measuring about 3 Kottas and 6 Chittaks on which he had fifteen rooms, including the shop room with brick walls and R. T. roofs and other fitting and fixtures fully detailed and described in the schedule to the plaint. Bindadin died on 11.5.75 leaving behind his widow (plaintiff No. 1) and three minor sons (plaintiff Nos. 2 to 4) who were in khas possession of two rooms and let out the other rooms after mutating their names. It is alleged that the defendant Md. Jalil Answari was a tenant in respect of three such rooms and used to pay rent separately for each room at the rate of Rs. 20/-, Rs. 20/- and Rs. 10/- according to English calendar month and such rent was paid upto May, 1973. In the month of June, 1973, the said Bindadin Tiwari with plaintiff No. 1 approached the defendants for a loan of Rs. 2,000/- for payment of debts and the expenses incurred for marriage of their foster daughter. It was settled that such loan of Rs. 2,000/- will carry interest of Rs. 2,000/- for five years and the defendant shall remain in occupation of the said three tenanted rooms, without payment of any rent. It was also decided that it would be a loan transaction for which two documents in respect of the suit property, one in the form of ostensible sale deed for an amount of Rs. 4,000/- (principal Rs. 2,000/- plus interest Rs. 2,000/-) is to be executed and another deed in the form of simultaneous ostensible agreement for reconveyance of the suit property is to be executed. Accordingly two documents were executed on 26.6.73 and a sum of Rs. 2,000/- was handed over to Bindadin Tiwari towards loan, and the balance Rs. 2,000/- was kept by the defendant towards interest for five years.
(3.) It is specifically stated in the plaint that Bindadin Tiwari had no intention to sale the property at such a low price inasmuch as its market price were more than Rs. 30,000/- at the relevant time and it was yielding monthly income of Rs. 200/- from the tenants towards rent. Moreover, the plaintiffs have, been paying taxes in respect of the suit property and has been realising rent from the tenants, as usual. The plaintiffs are ready to repay the lawfully due amount. But the defendant has been trying to grab the entire property ignoring the said loan transaction for which the instant suit was filed praying for declaration that the transaction was a loan in substance or mortgage by conditional sale, and also for ascertainment of the amount due and for accounts. Prayer is also made for easy instalment for payment of the amount to be found due under the Bengal Money-lenders Act.;