The main legal point established in the judgment is the application of res judicata in the second round of litigation, the nature of the transaction, and the possession of the property.

JUDGMENT

Harish Tandon, J. - This is the second round of litigation between the parties over the subject land. The present second appeal arises from a judgment and decree dated 30th September, 2019 passed by the Learned Additional District Judge, Second Court, Serampore in Title Appeal no. 72 of 2012 reversing the judgment and decree passed by the learned Civil Judge(Junior Divison),1st Court, Serampore on 22nd March, 2012 in Title Suit no. 226 of 2004.

2. Being unoblivion of the proposition of law that, at the time of admission of an appeal under Order 41 Rule 11 of the Code, the matter remained with the appellant and the court to ascertain the involvement of the substantial question of law but the peculiar facts involved in the suit invited us to take a digression from such rule to set at rest the controversy lingering between the parties and the docket of the court. The respondents were allowed to make submissions on the basis of the documents annexed with the application for stay filed by the appellant for such limited purposes.

3. The matter has a chequered history and the clever draftmanship to create illusory cause of action is eminent and evident from the stand of the Appellants taken in the pleading and the findings returned by both the courts below thereupon.

4. The litigation over the disputed properties ensued as far back as in 1975 when the predecessor-in-interest of the plaintiff instituted Title Suit no. 93 of 1974 in the 1st Court of Munsiff at Serampore seeking declaration that the purported deed of sale executed by him is to secure mortgage and not an absolute sale.

5. It was a specific case made out in the plaint of the said title suit that the predecessor of the present appellant was the owner of the suit properties described in Schedule "A" and "B" thereto by virtue of the dints of purchase and was facing a financial crunch and approached the defendant therein, i.e. the Respondent no. 1, for a loan and in order to secure the same executed an ostensible sale-deed with clear stipulation that upon repayment of the same with interest it would be reconveyed. It was further averred that the possession would remain with the predecessor-in-interest of the plaintiff and, therefore, no title passed to the Defendant no. 1 or the other defendants through him in respect thereof.

6. The contesting defendants filed separate written statements and it was contended therein that the predecessor in interest of the present plaintiffs sold transferred and conveyed the said property to the Defendant no. 1 upon acceptance of the consideration and the possession was also delivered simultaneously therewith.

7. The suit came for final disposal on 23rd December, 1975 and the learned Munsiff held that although it is contended that the Defendant no. 1 was a money lender and purchased the property by taking loan from the other but it does not appear from the cogent evidence that the said Defendant no. 1 borrowed money from his wife. It was thus, held that said transaction is nothing but an absolute sale and the right, title and interest passed through said sale-deed. The Learned Munsiff further proceeded to return his finding on possession of the parties and held that the 3 rent receipts issued in 1381 BS imply the presumption of possession in favour of the plaintiff based upon the deposition of the witnesses cited on behalf of the defendant and further held that there is no satisfactory evidences adduced by either side on possession and dismissed the suit. However, the findings on the intention of the parties in execution of the document was projected as the only criterion to dismiss the suit.

8. The said judgment and decree was carried in appeal before the learned Additional District Judge, 1st Court, Hooghly which was registered as Title Appeal no. 54 of 1975. The Appellate Court reversed the judgment and decree of the Trial Court on the nature of the transactions between the parties more particularly, attaching upon the purported sa