Pabitra Kumar Banerjee, J. - (1.) In a declaratory suit filed by Hazira Khatoon Bibi and six others against Kasimon Bibi and her husband, the plaintiffs assailed the sale-deed dated 11.1.39 ext. 2 alleged to have been executed and registered by Rahim Bux Mallick, predecessor-in-interest of the plaintiffs, on the ground that the said deed was brought into existence by the defendants by exercise of undue influence and fraudulent misrepresentation. The plaintiffs further asserted their uninterrupted possession over the 'B' schedule suit property and challenged the entries in the R. S. record of rights ext. 3 concerning the said property as erroneous. The defendants, in their joint written statement maintained that the sale deed dated 11.1.39 was a valid document for consideration, that it was acted upon and that the defendant no. 1 is in exclusive possession of the suit property which has been correctly recorded in the R.S. record of rights.
(2.) The learned Munsif found that the sale deed dated 11.1.39 was duly executed and registered by Rahim Bux, that no undue influence or fraudulent misrepresentation was exercised by the defendants and that the suit was barred by limitation. Earlier the application for amendment filed by the plaintiffs was rejected by order dated 11.4.80. The suit was dismissed on contest and this is how the learned Munsif disposed of the suit. On appeal the learned Additional District Judge, Howrah, upheld the findings of the learned Munsif and dismissed the appeal. That is how the appeal was dealt with by the first appellate Court. In the appeal before this Court the decree of dismissal of the Courts below is under challenge. During the pendency of this appeal in this Court, the plaintiff appellant no. 1 and both the defendant-respondents died and their heirs have been substituted.
(3.) Mr. Saktinath Mukherjee, the learned Counsel for the plaintiff-appellants took us through the entire evidence recorded by the learned Munsif, drew our attention to the application under Order 6 Rule 17 C.P. Code filed by the plaintiffs and its rejection by the Courts below and argued before us in his usual candidness, (1) that the Courts below erred in not considering the oral evidence of P.W. 2 Saher Ali and DW1 Aminuddin revealing the facts and circumstances under which the impugned sale deed ext. 2 was brought into existence, (2) that the failure of the courts below to take into account the relationship of lender and borrower between Aminuddin and Rahim Bux immediately preceding the alleged sale-transaction led to the miscarriage of justice and (3) that the application for amendment of plaint should have been allowed in consequence of which the plaintiff-appellants could characterise, in the alternative, the impugned sale-transaction as a loan transaction. In support of the contentions aforesaid our attention was drawl to the provisions of section 37A of the Bengal Money Lenders Act, 1940.;