GAUHATI HIGH COURT ISSUES ORDER ON SMT. LAKSHMI PRABHA DAS AND ORS V/S SMTI.BULU BANERJEE AND OTHERS

GUWAHATI, India, June 10 -- Gauhati High Court issued the following order on May 13:

1. Heard Mr. D. Choudhury, the learned counsel appearing on behalf of the appellants and Ms. S. Chakraborty, the learned counsel appearing on behalf of the respondent Nos. 1.1, 1.2 and 1.3. 2. This is an appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for short 'the Code') challenging the judgment and order dated 29.03.2008 passed by the learned Civil Judge (Senior Division) No.1, Kamrup at Guwahati (for short 'the learned First Apellate Court) in Title Appeal No.76/2001 whereby the judgment and decree dated 21.07.2001 passed by the learned Civil Judge (Junior Division) No.1, Guwahati (for short 'the learned Trial Court) in Title Suit No.402/1994 was set aside and quashed. 3. It is seen from the records that the Coordinate Bench of this Court vide an order dated 03.12.2008 formulated two substantial questions of law. Subsequently, vide an order dated 09.05.2024, this Court formulated another substantial question of law. The three substantial questions of law so formulated are reproduced herein under: "1. Whether the judgment and decree passed by the learned lower appellate court is illegal for not considering the provision of section 20 of the Specific Relief Act, 1963?

2. Whether the learned lower appellate court committed illegality in misconstruing the provision of Section 60 of the Transfer of Property Act regarding mortgage of immovable property?

3. Whether the learned First Appellate Court was justified in reversing the judgment and decree passed by the learned Trial Court without considering Section 13 of the Specific Relief Act, 1963 inasmuch as Exhibit-2 was duly proved as has been held by the Courts below?"

4. For the purpose of ascertaining as to whether the said substantial questions of law are duly involved in the instant appeal, this Court finds it relevant to take note of the facts which led to the filing of the instant appeal.

5. For the sake of convenience, the parties herein are referred to in the same status as they stood before the learned Trial Court.

6. One Shri Bhuban Mohan Das (since deceased) as plaintiff had instituted the suit being Title Suit No.402/1994 against the defendants who were the legal representatives of Late Binoy Krishna Banerjee. The case of the plaintiff herein was that Late Binoy Krishna Banerjee who was the owner and in exclusive possession of a plot of land admeasuring 4 Bighas 1 Kathas 11 Lechas covered by Dag No.31 of K.P. Patta No.125 of village Sutpur, Mouza Barduar, the land most specifically described in Schedule-A to the plaint, on account of urgent need of money had taken a loan of Rs.1500/- from the proforma defendant No.4 and in that regard had executed a registered deed of mortgage bearing Deed No.1972 dated 04.02.1969.

7. It was the case of the plaintiff that at the time of execution of the said registered deed of mortgage, the possession of the land described in Schedule-A to the plaint was handed over to the proforma defendant No.4. It was the further case of the plaintiff that in terms with the mortgage deed entered into, the said Late Binoy Krishna Banerjee was to repay the amount of loan within three years from the date of execution of the mortgage deed along with interest along at the rate of 12.5% per annum to the proforma defendant and if the said Binoy Krishna Bannerjee fail to repay the said amount within the stipulated time, it will remain mortgaged with the proforma defendant No.4. It was also a stipulation that the proforma defendant No.4 would deduct Rs.6/- from the income of the mortgage property every year. It was the further case of the plaintiff that Late Binoy Krishna Banerjee failed to repay the amount upto 12 years since the date of execution of the mortgage deed and as such, he entered into an oral agreement with the plaintiff to sell the land described in Schedule-B which is a part of the Schedule-A land for consideration of Rs.5000/-.

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=DGLYj3d%2B3YUl7w50SUed9p%2BeYxZZElPRRReezF%2Fsa9jJbbg0%2FGVQkdOFg9S4oYzC&caseno=RSA/134/2008&cCode=1&cino=GAHC010004092008&state_code=6&appFlag=)

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