( 1. ) THIS appeal by the defendant 2 is directed against a decree declaring the plaintiff to be the owner of the disputed house, placing him in possession thereof and directing the defendant 2 to pay Rs. 720/- as damages for use and occupation of the house. The defendant 1 too has filed First Appeal No. 84 of 1968 against the decree so far as it relates to his eviction from the house. This judgment shall dispose of the two appeals.

( 2. ) THE material facts, which are not now in controversy, are these. The house in dispute belonged to the defendant 2, who executed in favour of the defendant 3 a sale deed dated 26th December 1959, for an apparent consideration of Rs. 8. 000/ -. By a sale deed dated 5th December 1962, the defendant 3 sold the house to the plaintiff for Rs. 9,000/ -. On that date, the defendant 1 was in possession of the house.

( 3. ) ACCORDING to the plaintiff, he became by virtue of the sale deed dated 5th December 1962, the owner of the house, He claimed that he bona fide required the house for the residence of himself and the members of his family and that he had no other house of his own at Damoh which was reasonably suitable for such residence. Treating the defendant 1 as a tenant in occupation of the house, the plaintiff served upon him two notices to quit dated 1st May, 1964 and 6th July 1984 and thereby terminated his tenancy. Subsequently, on learning that the defendant 1 had colluded with the defendant 2 and was setting up the latters title to the disputed house, the plaintiff served upon him yet another notice dated 8th April 1967 forfeiting the tenancy, The plaintiff claimed Rs. 2,160/- as damages either from the defendants 1 and 2 or from the defendant 3.

( 4. ) THE defendant 3 admitted the material averments of the plaint, did not contest the plaintiffs claim and stated that he was unnecessarily impleaded as a party defendant.

( 5. ) THE main contesting party was the defendant 2. According to him, the sale deed dated 26th December 1959 was a nominal transaction executed as a collateral security for a loan of Rs. 7,000/- and Rs. 1,000/- as interest thereon for three years, which was not intended to be acted upon, He further pleaded that it was verbally agreed between him and the transferee that, within 3 years, the latter would upon repayment of the loan, re-transfer the house. He also claimed that he was all along in possession of the house and that the defendant 1 was in its occupation as his tenant. He traversed all other averments in the plaint.

( 6. ) THE defendant 1 pleaded that he was inducted as a tenant of the defendant 2, that he recognized the defendant 2 as his landlord and paid rent to him and that he was not liable to be evicted at the instance of the plaintiff. According to the defendant 1, it was in the year 1962 that a house belonging to one Abdul Kadir was allotted to him by the Rent Controlling Authority and the disputed house was likewise allotted to one R. S. Shrivastava, a marketing inspector, and thereafter the two allottees exchanged the houses thus allotted to them with the consent of the owners, The defendant 1 further claimed that, in 1965 the disputed house was allotted to him. In conclusion he stated that he was willing to pay rent to the plaintiff if he be found to be the owner of the house.

( 7. ) ON the main point in controversy, the Additional District Judge found against the defendant 2. The Judge, however held that the defendant i took possession of the disputed house in the circumstances pleaded by him and that, in 1965, that house was actually allotted to him. According to the conclusions reached by the learned Judge, the plaintiff did not require the house for his residence as pleaded by him but the defendant 1 was liable to be evicted on the ground that the allotment order passed in his favour was illegal.

( 8. ) THE main question for consideration in these appeals is whether the sale deed dated December 26, 1959 was, by agreement, a nominal transaction not