The intention of the parties and the content of the documents are crucial in determining the nature of a transaction, whether it is a loan or a sale.

JUDGMENT :

Siddhartha Roy Chowdhury, J.

1. This appeal impeaches the judgement and decree passed by learned First Appellate Court in Title Appeal No. 18 of 2011 affirming the judgement and decree passed by learned Trial Court.

2. Briefly stated, the predecessor-in-interest of the present appellant, Bishnu Pada Mondal files the suit for declaration that the mortgage created by the document described in ‘Kha’ schedule of the plaint in respect of the property comprised within plot no. 5655 and 5656 within Mouza Mouligram was redeemed and the plaintiff/appellant has the right title interest over the ‘Ka’ schedule property and for permanent injunction, stating, inter alia, that the original plaintiff Bishnu Pada Mondal approached the defendant to lend a sum of Rs. 500/-but the defendant/respondent Kishori Mohan Samanta refused to lend any money without security. Helpless plaintiff was compelled to place the property described in ‘Ka’ schedule of the plaint on mortgage. The defendant/respondent got a deed of sale executed in his favour by plaintiff/appellant showing a sum of Rs. 1500/-as consideration money and the said instrument was registered on 22nd July, 1974. It is contended that at the relevant point of time the value of the said property was Rs. 2000/-. The plaintiff/appellant had to keep the property mortgaged only for Rs. 500/-however, the possession of the property was never parted with. According to plaintiff/appellant, the transaction that took place on 22nd July, 1974 was in substance a loan transaction and not a sale. The defendant however, refused to release the mortgaged property. The plaintiff/appellant filed a petition under Section 36 and 38 of the Bengal Money Lenders Act, 1940 before the competent Court of law. During pendency of the said proceeding the parties came to a settlement. It was agreed upon by and between the parties with the intervention of their well wishers that the plaintiff shall withdraw the said proceeding by 2nd August, 1975 and the defendant would execute a deed transferring the ‘Ka’ schedule property in favour of the plaintiff. If the defendant/respondent failed to act in terms of agreement it would be held that the plaintiff/appellant had the right title interest over the said property. The plaintiff/appellant in terms of such settlement paid the money but the defendant/respondent did not execute the instrument transferring the property in question in favour of the plaintiff/appellant. As the plaintiff had been possessing the suit property he did not insist for execution of the deed. By the act of the parties, the mortgage was redeemed. But on 18th Bhadra 1408, the defendant/respondent threatened the plaintiff to dispossess him from the suit property. Hence the suit.

3. The defendant contested the suit by filing written statement denying all material allegations. According to defendant, the plaintiff sold and transferred the property in suit on 22nd July, 1974 by executing the deed registered on 23rd July, 1974. Since after purchase defendant has been possessing the said property. The plaintiff earlier filed a suit under the Bengal Money Lenders Act and the same was withdrawn. Thereafter, he initiated proceeding under Section 147, 323 and 379 of the I.P.C. being Pingla P.S. Case No. 75 dated 25th November, 1975 C.R. Case No. 82 of 1976. Ultimately he filed R.L. Case No. 768 of 1983 in order to get back the land under WBRAL Act but all the proceedings were decided to the ultimate benefit of the defendant/respondent.

4. Considering the pleadings of the parties and evidence adduced by witnesses, learned Trial Court dismissed the suit. The decision of the learned Trial Court was challenged before the learned First Appellate Court in Title Appeal No. 18 of 2011. Learned First Appellate Court also refused to accept the appeal. Challenging the said judgement and decree of learned First Appellate Court, successors of original plaintiff/appellant preferred the second appeal which was admitted on the fol