P (PLP)

The Civil Courts were not justified after excluding some of the materials admissible before the Board on the ground that it was not admissible before itself, in arriving at the conclusion that the document in. question was a conveyance and could not be treated as a mortgage creating a liability and in that view decreeing the suit. Mati Lal Acharjee for Prafulla Kumar Chatterjee, for Appellant. Anil Kumar Das Gupta for Manindra Nath Ghose, for Respondents. This appeal by the defendant arises out of a suit for a declaration that a deed of sale (Exhibit 1), dated 16th Chaitra 1341 B. S., 30th March 1935, executed by the defendant in favour of the plaintiffs, was really a deed of sale and not a mortgage by conditional sale as alleged by the defendant. Briefly stated the plaintiffs case was that the defendant borrowed some money from the plaintiffs upon executing a simple mortgage bond, that being unable to pay the dues, the defendant executed the kobala (Exhibit 1), but subsequently, applied to Debt Settlement Board for the settlement of his debts, alleging that the kobala was really a mortgage by conditional sale The, Board found in his favour and settled the debt at rupees two hundred. The plaintiffs thereupon instituted the present suit. the main defence of the defendant was that the suit was not maintainable in view of section 20 Bengal Agricultural Debtors' Act, Both the Courts below, however, rejected the defence plea and decreed the suit. The defendant thereupon preferred the present appeal. It has been urged before me by the learned Advocate for the appellant that the Courts below took an erroneous. view of the law in holding that the decision by the Board was without jurisdiction inasmuch as Exhibit 1 was clearly a conveyance and not a mortgage; that no doubt, it was true that it has been held that a Civil Court has jurisdiction to determine whether or not an admitted transaction creates a liability, but the Civil Court has to consider the question from the point of view of the Bengal Agricultural Debtors Act, in the light of the evidence adduced before the Debt Settlement Board, and the surrounding circumstances; and that it should be remembered that except as otherwise provided by the Bengal Agricultural Debtor's Act, the Board is untrammeled arid unfettered by the provisions of the Civil Procedure Code and the Evidence Act (vide section 45 of the Act) so that the materials which may exist before the Board may not be admissible before the Civil Court, while construing the document in question; that consequently the Board may be able to decide a controversy by reference to evidence not admissible under the Evidence Act and so not available to the Civil Court I agree with the appellant that the question must be decided with reference to the materials Available to the Board and placed before it although they may be inadmissible before the Civil Court in view of the Evidence Act. In the present case, it appears that the Debt Settlement Board took into account the oral evidence on behalf of the appellant not to the effect that in spite of Exhibit 1 there was a verbal agreement between the parties to the effect that the plaintiffs would give up possession of the said, land to the defendant on his repayment of the money mentioned in Exhibit 1‑ It also took notice of the significant fact that the defendant had paid the rent to the landlords subsequent to the date of Exhibit 1 and, so in its opinion, it was not at all improbable that Exhibit 1 though in form a document of sale was in reality a mortgage. On a consideration of the facts and circumstances the Board decided that the transaction evidenced by Exhibit 1 really amounted to a mortgage and not to a sale and in that view made its award. 'In the above circumstances, I do not think that the Courts below were justified, after excluding some of the materials admissible before the Board on the ground that it was not admissible before itself, in arriving at the conclusion that Exhibit 1 was a conveyance and could not be treated as a mortgage creating a liability and in that view decreeing the suit. In my opinion, the materials available to the Board on which the question was decided by it should have been taken into consideration by the Civil Court in determining the matter, viz., the question whether or not the transaction in question did or did not create a liability. It seems to me that both the Courts below committed the error of looking at Exhibit 1 alone and excluding all other evidence adduced before the Board as inadmissible under the Evidence Act for the purposes of determining the nature of the transaction. On the evidence adduced before the Debt Settle ment Board, it does not appear to me that the inference drawn by it to the effect that Exhibit 1 was meant to be a mortgage and was intended to create a liability was erroneous. I accordingly allow this appeal, set aside the judgments and decrees of the Courts below and maintain the order of the Debt Settlement Board as made with jurisdiction. There will be no order as to costs. K. W A./A. H. Appeal allowed.