Judgment : The plaintiffs' case is that the disputed property was held by defendant no. 1 as a thika tenant. On the 20th December, 1957, the latter sold the same to one Kali Bala. By a registered kobala dated 14th November, 1962, the plaintiffs purchased the property from Kali Bala. Defendant No.1 also joined in that tansaction as a consenting party. On that date, the plaintiffs entered into an agreement that the latter would possess the property as a licensee for three years and a deed of reconveyance would be executed by the plaintiffs if the consideration of Rs. 5000/- was paid within three years. Defendant no. 1 did not exercise such option within three years. The plaintiffs revoked the license and instituted the suit for eviction. 2. Defendant no. 1 resisted the claim on the ground that no sale was made but the transaction constituted a loan in substance. 3. The learned Munsif stated that the Misc. Case 76 of 1958 was filed by defendant no. 1 against Kali Bala under Section 36 of the Bengal Money Lenders Act on the ground that the former took a loan of Rs.3500/- from the latter. That application was rejected. After that decision the present question was barred by the principles of res judicata He stated that the defendant no. 1 was the plaintiffs' licensee. The suit was therefore, decreed. An appeal was preferred by defendant no. 1 and that too was dismissed by the learned Additional District Judge on the same ground. Hence the present appeal. 4. It has been contended on behalf of the appellant that the previous Misc. Case under Section 36 of the Bengal Money Lenders Act was filled in May 1958. The Court was not competent to discuss the matter whether the transaction was a loan or loan in substance. But after that decision the law became changed because of the introduction of Section 37 A of the Bengal Money Lenders Act. This aspect of the case was not considered by the trial court as also by the appellate court. The documents and the receipt, Exhibit A including the oral evidence were not gone into by these courts and hence the decision is vitiated. 5. The learned Advocate appearing on behalf of the respondents has contended that the matter is barred by res judicata. The documents and the receipt, Exhibit A including the oral evidence were not gone into by these courts and hence the decision is vitiated. 5. The learned Advocate appearing on behalf of the respondents has contended that the matter is barred by res judicata. Supposing in the case of a Hindu widow, there is a decision that she did not acquire absolute interest in a property. After the introduction of the Hindu succession Act on the 17th June, 1956. She cannot come up with a fresh case that the previous decision would not operate as res judicata because of the change of law. 6. The Section 37A of the Bengal Money lenders Act was introduced by an amendment of the Act on the 15th October, 1965. That Section says that in the case where any loan is secured by a mortgage and the mortgagor ostensibly sells the mortgaged property on any of the conditions specified in section 58C of the Transfer of property Act then notwithstanding anything to the contrary contained in the proviso to the sub-section, the transaction shall always be deemed to be a mortgage by conditional sale. The case reported in (1) Abdul Rahim & Ors. v. Kamalapari Mukherjee, AIR 1972 Cal 541 shows that the Section 37A of the Act has retrospective operation and so that Section applies to transactions entered into even prior to such amendment of the Act. Reference may be made to the case of (2) Marhura Prasad v. Dosi Bai in AIR 1971 SC 2355 to show that where subsequently the law is changed or if the cause of action of the two sides is different, tile principles of res judicata embodied under section 11 of the Code of Civil Procedure will not apply. 7. An analogy of the provisions of the Hindu Succession Act is not applicable as that Act has no retrospective operation. Now when the previous Misc. Case under Section 36 of the Bengal Money Lenders Act was filed, in view of the proviso to the section 58(c) of the Transfer of Property Act, the question whether the transaction was a sale or a loan in substance could not be gone into. Moreover, this point was set at rest by Mr. Justice Vivian Bose in the Case reported in (3) Chumchum Jha v. Ebadat Ali, AIR 1954 SC 345 at page 347. Moreover, this point was set at rest by Mr. Justice Vivian Bose in the Case reported in (3) Chumchum Jha v. Ebadat Ali, AIR 1954 SC 345 at page 347. In that case it has been stated that according to the provisions of section 58C of the Transfer of Property Act if the Sale and agreement to repurchase are embodied under separate transactions, then the transaction cannot be a mortgage whether the documents are contemporaneously executed or not. But a total change of law was introduced by the Section 37A of the Act. This aspect of the case was ignored by both the courts. Material evidence was not considered. Even the final court of fact ignored to take into consideration the oral evidence adduced in this respect. 8. The case of (4) Bhoju v. Debnath, in AIR 1963 SC 1906 show that there is a distinction between a mortgage by conditional sale and a sale with a condition of repurchase. The test in such cases is to find out the intention of the parties on a consideration of the contents of the documents and other relevant consideration. 9. Thus from the aforesaid discussion, the respondent's contention cannot be sustained. I, therefore, find that the merits of the case were affected for non-consideration of material evidence and the change of law in this respect and that the principle of res judicata do not apply to the facts of this case. Hence, a proper determination of the entire thing on the merits is necessary. I, therefore, hold that for the ends of justice the suit must be remitted to the trial court for determination of the important point whether the transaction in question is a sale or a loan in substance. An additional issue will be framed on that point. The court will arrive at its decision on the evidence on record and on further evidence. If any, adduced by the parties. 10. The appeal is therefore, allowed. The judgment and decree appealed against are hereby set aside and the suit is remitted to the trial court for disposal of the same according to law and in the light of the observations made hereinbefore. 11. There will be no order as to costs.