: The legal effect of words used in documents determines intention; no transaction is deemed mortgage unless conditions are in affecting sale document; principle of res judicata applies when there's conclusive determination.

JUDGMENT :

(Siddhartha Roy Chowdhury, J.) :

1. Challenge in this appeal is to the judgement and decree passed by learned Additional District and Sessions Judge, 3rd Court, Howrah in Title Appeal No. 100 of 2016, reversing thereby the judgement and decree passed by learned Trial Court on 30th April, 2011 in Title Suit No. 19 of 2008.

2. For the sake of convenience the parties will be referred to as they were arrayed before the learned Trial Court.

3. Briefly stated, depicting herself as the owner of the property the plaintiff filed a suit for eviction of defendant contending, inter alia, that Maya Rani Samanta, the defendant herein, purchased the property in suit from Md. Masum Mallick in the year 1984. While possessing the property by mutating her name and by constructing one RTO shed covering the suit property where she used to run work shop, Maya Rani Samanta on 24th May, 2001 sold and transferred the said property to the plaintiff by executing a deed which was registered on 25th May, 2001. The defendant however, approached the plaintiff to allow her to continue with the possession as she had to run the work shop and accordingly the plaintiff granted leave and licence to the defendant till 30th Chaitra, 1409 B.S. Licence was extended further till 30th Pous, 1414 B.S. Thereafter, the plaintiff refused to extend the licence further and filed the suit for eviction of the defendant after the defendant failed to act in terms of the notice terminating the licence.

4. The defendant contested the suit by filing written statement denying all material allegations.

5. It is the specific case of the defendant that she is owner of the suit property and not a licensee. She was in need of money and for that purpose she requested the plaintiff to lend a sum of Rs. 67,000/-; the plaintiff agreed to accommodate the defendant subject to the execution of an agreement, which is why the defendant on good faith executed the document on 25th May, 2001, and it was duly registered. When the plaintiff subsequently started claiming ownership over the property, local people intervened and the plaintiff agreed to re-conveyance the property in suit upon payment of Rs. 1,10,000/-. On 14th September, 2001, the agreement was executed. The defendant paid a sum of Rs. 60,000/-thereafter a sum of Rs. 30,000/-and subsequently she paid the remaining sum of Rs. 20,000/-but no receipt was granted by the plaintiff. The defendant made a counter claim seeking declaration that the transaction was not out and out sale, it was loan in substance; the defendant sought for direction upon the defendant to the counter claim (plaintiff of the suit) to execute the deed of re-conveyance. The plaintiff to the suit filed a written statement to that counter claim.

6. Learned Trial Court upon considering the pleadings of the parties framed issues. Considering the evidence alleged by the parties both oral and documentary, learned Trial Court was pleased to grant the decree in favour of the plaintiff for eviction and recovery of Khas possession. The counter claim stood dismissed. The defendant was directed to quit and vacate the suit property and to deliver peaceful possession of the same to the plaintiff.

7. Aggrieved by the said judgement and decree the defendant Maya Rani Samanta preferred an appeal before the learned District Judge, Howrah which was transferred to the Court of learned Additional District and Sessions Judge, 3rd Court, Howrah. Learned lower Appellate Court was pleased to allow the appeal and was pleased to send the case record on remand to the learned Trial Court for proper framing of issues in respect of counter claim filed by the defendant and to dispose of the suit if necessary after granting liberty to the parties to adduce evidence.

8. Aggrieved by the said judgement of learned First Appellate Court the second appeal has been preferred by the plaintiff.

9. Assailing the impugned order Mr. Animesh Paul, learned Counsel for the plaintiff (appellant) submits that