JUDGMENT G.R. Bhattacherjee, J. This judgment will govern two appeals, namely, F.A. No 32 of 1981 and F.A. No. 298 of 1990, as both the appeals arise out of the same judgment and there was analogous hearing of the two appeals. The impugned judgment was passed by the learned Subordinate Judge, 2nd Court, Hooghly on the 20th June, 1980 after analogous hearing of two Title Suits, namely, Title Suit No. 69 of 1968 and Title Suit No.5 of 1975. Title Suit No. 69 of 1968 was filed by Biman Bihari Banerjee against one Jiban Krishna Dey who having died during the pendency of the Suit was substituted by his heirs, Smt. Kanak Prova Dey and others. Biman Bihari's wife, Smt. Sachi Rani Devi was the proforma defendant in that Suit. Title Suit No.5 of 1975 was instituted by said Smt. Sachi Rani Devi against the heirs of late Jiban Krishna Dey. Biman Bihari, the husband of Sachi Rani was proforma defendant in that Suit. 2. It is the case of the plaintiff Biman Bihari in his Suit, namely, T.S. No. 69 of 1968 that he is the owner of the building and land described in the schedules 'Ka' and 'Kin' of the plaint; that the plaintiff earlier mortgaged the 'Ka' schedule property to one Pramatha Nath Mukherjee on taking a loan of Rs. 7,500/- by executing an ostensible sale deed dated 3rd February, 1964; that the possession of the property was retained by the plaintiff; that it was agreed between the plaintiff Biman and Pramatha that on payment of Rs. 12,000/- inclusive of interest within 3 years the latter would re-convey the property to the former; that as the property was worth about Rs. 50,000/- Biman wanted to get the same released by raising loan and approached the original defendant Jiban Krishna for procuring money on mortgaging his properties described in the schedules 'Ka' and 'Kha' of the plaint; that Jiban Krishna agreed to lend him Rs. 13,000/- (Rs. 12,000/- for payment to the heirs of Pramatha and Rs. 1,000/- for incidental expenses) on condition that Biman would execute a sale deed in respect of the said properties describing therein Rs. 30,000/- as consideration money; that it was further agreed that Biman would, within 6 months, repay Rs. 35,000/- to Jiban Krishna in which event Jiban Krishna would re-convey the properties to Biman; that accordingly Jiban Krishna advanced Rs. 1,000/- for incidental expenses) on condition that Biman would execute a sale deed in respect of the said properties describing therein Rs. 30,000/- as consideration money; that it was further agreed that Biman would, within 6 months, repay Rs. 35,000/- to Jiban Krishna in which event Jiban Krishna would re-convey the properties to Biman; that accordingly Jiban Krishna advanced Rs. 13,000/- to Biman on the 1st April, 1967 and on that very day Biman, out of the said amount, paid Rs. 12000/- to Sanat Kumar Mukherjee and others, the heirs of late Pramatha Nath who had expired in the meantime and got a deed executed by the said heirs of Pramatha Nath in favour of Biman on 1.4.67 in respect of 'Ka' schedule properties; that on 3.4.67 Biman executed a deed purporting to be a sale deed in favour of Jiban Krishna and both the deeds namely the deed dated 1.4.67 executed by the heirs of Pramatha Nath in favour of Biman and the other dated 3.4.67 executed by Biman in favour of Jiban Krishna were registered on 3.4.67; that Biman continued to possess the properties described in 'Ka' and 'Kha' schedules of the plaint even after the execution of the deed dated 3.4.67 but he was forcibly dispossessed by Jiban Krishna on 30.7.67; that subsequently Biman approached Jiban Krishna, in accordance with the earlier verbal agreement between them, to take back the properties on payment of Rs. 35,000/-; Ibat Biman procured Rs. 5,000/- himself and also obtained a loan of the remaining amount of Rs. 30,000/- from his brother-in-law (sister's husband) Dr. Guruprasanna Mukherjee and it was agreed, according to the wish of said Dr. Guruprasanna, that Jiban Krishna would execute a deed of sale in favour of Dr. Guruprasanna's wife; that ultimately Jiban Krishna resiled and on enquiry the plaintiff came to learn that Jiban Krishna had fraudulently included in his deed dated 3.4.67 an additional property described in the 'Ga' schedule of the plaint; that the said 'Ga' schedule property belongs to Smt. Sachi Rani, the wife of Biman and Biman is not the owner of the said property nor was there any talk for including the said property in the said deed. Accordingly, the plaintiff Biman prayed in his Suit, namely, T.S. No. 69 of 1968 for declaration that the deed dated 3.4.67 executed by the plaintiff in favour of Jiban Krishna was in fact a mortgage deed and the transaction in question was in substance a loan transaction and for further declaration that the 'Ga' schedule property of the plaint was not transferred under the deed and the plaintiff had no cause or right to do so. In the Suit the plaintiff also prayed for further relief as admissible under Ss. 36 and 38 of the Bengal Money Lenders Act. 3. As already stated Title Suit No.5 of 1975 was filed by Smt. Sachi Rani as plaintiff, who is the wife of Biman Bihari, the plaintiff of Title Suit No.69 of 1968. The 'Ka' schedule property of T.S. No. 5 of 1975 filed by a Sachi Rani is the same as the 'Ga' schedule property of the Suit filed by her husband, Biman. Sachi Rani's case in substance is that, she is the owner of the said property by virtue of her purchase of the same with her own money from Nepal Chandra Banerjee through a sale deed dated 30.4.56. Her case is that, her husband has or had no right, title or interest, in that property and there was no talk with Jiban Krishna for inclusion of that property in the deed executed by her husband in favour of Jiban Krishna, and that Jiban Krishna accordingly never made any attempt to disturb her possession in the said property so long he was alive, but on his death his heirs namely, the defendants threatened to dispossess her and hence she was constrained to file the Suit against the heirs of Jiban Krishna for declaration of title and for injunction. It is also her case that during the pendency of the Suit the defendants demolished her structure standing on her property and accordingly she made prayer by way of amendment of the plaint, for certain relief. 4. In both the Suits the defence is based on the same plea, namely, that the transaction in question as evidenced by the deed dated 3.4.67 executed by Biman Bihari in favour of Jiban Krishna was an out and out sale for a coosideration of Rs. 4. In both the Suits the defence is based on the same plea, namely, that the transaction in question as evidenced by the deed dated 3.4.67 executed by Biman Bihari in favour of Jiban Krishna was an out and out sale for a coosideration of Rs. 30,000/- paid by Jiban to Biman on 3.4.67; that both Biman Bihari and Sachi Rani represented that Biman Bihari was the owner of the properties described in the schedules of the deed dated 3.4.67 which were all comprised within one boundary; that there was no agreement of loan between Biman and Jiban; that on 15.9.67 Sachi Rani came to the house of Jiban Krishna and declared that Plot No. 3901 described in schedule 'Kha' of the deed dated 3.4.67 was her property and not of her husband and then Jiban Krishna made searches and came to learn that a portion of the said Plot No. 3901 was purchased in her name and was standing in the Municipal records as a separate holding; that Jiban Krishna came to learn that Sachi Rani was really a Benamdar of her husband and she never had any title or possession in the said property; that thus Jiban Krishna realised that be had been cheated by both husband and wife and he then approached them for rectification of the defect in title in respect of the said property by a new deed but they flatly refused and I thereafter Jiban Krishna made a petition to the then Chief Minister of West Bengal on 22.9.67 describing how he became a victim of conspiracy and fraud exercised by Biman, Sachi Rani and others and the matter, was ultimately referred to the Detective Department for investigation and a criminal proceeding was started against both the husband and the life and others. It may be mentioned here that the said criminal proceeding, so far it related to Sachi Rani was quashed by the High Court and Biman and others were acquitted after trial. 5. As regards possession it is the defence case that after purchase Jiban Krishna got possession of the entire property .and on his request. It may be mentioned here that the said criminal proceeding, so far it related to Sachi Rani was quashed by the High Court and Biman and others were acquitted after trial. 5. As regards possession it is the defence case that after purchase Jiban Krishna got possession of the entire property .and on his request. Biman Bihari was allowed to occupy only two rooms for three months as a tenant under Jiban Krishna and subsequently Biman Bihari gave up possession of those two rooms also to Jiban Krishna on 30.7.67 and left behind some of his articles preparing list in respect of the same and subsequently some of those articles were taken away and some sold by Biman Bihari under written acknowledgements. 6. The learned Subordinate Judge, tried both the abovementioned Suits analogously and disposed of the same by his impugned judgment dated the 20th June, 1980. He held that the transaction in question was a sale transaction and not a loan transaction and accordingly he dismissed the Title Suit No. 69 of 1968 brought by the plaintiff Biman, But the learned Subordinate Judge at the same time held that the disputed plot no. 3901 was the self-acquired property of Sachi Rani and there was no evidence that her husband acquired the property in her name and that the said property was not transferred by the said deed executed by Biman Bihari in favour of Jiban Krishna. Accordingly, the learned Subordinate Judge decreed the Title Suit No.5 of 1975 brought by Smt. Sachi Rani and declared her right, title, interest and possession in the suit property of the said Suit. He further directed the principal defendants of that suit, by an order of mandatory injunction, to restore the Suit property of T.S. 5 of 1975 to its original condition within one year from the date of his order and at the same time granted liberty to the plaintiff of that Suit to have it done herself in case the defendants would not do the same, and to recover the cost of such restoration from the principal defendants. 7. Being aggrieved by the dismissal of the Title Suit No. 69 of 1968 Biman Bihari, the plaintiff of that Suit has preferred before this Court the appeal numbered as F. A. No. 32 of 1981 making the defendants of that Suit respondents in this appeal. 7. Being aggrieved by the dismissal of the Title Suit No. 69 of 1968 Biman Bihari, the plaintiff of that Suit has preferred before this Court the appeal numbered as F. A. No. 32 of 1981 making the defendants of that Suit respondents in this appeal. Again; being aggrieved by the decree passed by learned Subordinate Judge in Title Suit No. 5 of 1975 the principal defendants of that Suit who are the heirs of Jiban Krishna have preferred the other appeal numbered as F. A. No. 298 of 1990. Since they arise out of the same judgment both these appeals have been heard analogously, as I have already stated, and this judgment will govern both. 8. Two principal questions involved in these appeals are whether the transaction evidenced by the deed dated the 3rd April, 1967 (exb. 4/a) purporting, to be a sale deed executed by Biman Bihari in favour of Jiban Krishna is an out and out sale or is, in substance, a loan transaction and whether the property described in schedule 'Ga' of the plaint of Biman Bihari's suit, namely, T.S. 69 of 1968 is the self-acquired property of Sachi Rani. It may be noted here that the deed in question purports to be a sale deed and therefore carries with it an ex facie presumption that it is a sale deed as it purports to be inasmuch as it is the normal presumption that the apparent state of affairs is the real state unless the contrary is proved. The burden is, therefore, on the plaintiff Biman Bihari to establish that the apparent state of affairs is not the real state or in other words that the transaction in question is in fact not a sale but a loan in substance, so as to attract the provisions of and the reliefs available under the Bengal Money Lenders Act, 1940. Again, it is also one of the well-established principles that the plaintiff in a suit must succeed on the merit of his own case and not by reason of the defects in or the weakness of the case of his adversary. 9. It has been argued by Mr. Again, it is also one of the well-established principles that the plaintiff in a suit must succeed on the merit of his own case and not by reason of the defects in or the weakness of the case of his adversary. 9. It has been argued by Mr. Roy Chowdhury on behalf of the appellant Biman Bihari, and indeed rightly, that the question whether the transaction was a loan in substance or an out and out sale will have to be decided on circumspection of the facts and circumstances preceding the transaction as well as those attending and following the transaction in question. As regards preceding circumstances, it has been submitted that the properties of the 'Ka' schedule of the plaint of Biman Bihari's suit was earlier mortgaged to Pramatha Nath by a deed dated the 3rd February, 1964 (exb.1) which also purported to be a sale deed in form for a loan of Rs. 7,600/- and the property was subsequently released by the heirs of Pramatha Nath by executing a deed dated 1.4.67 (exb. 4/b) after taking a sum of Rs. 12,000/- in accordance with the original verbal agreement between Biman and Pramatha for return of such property on payment of Rs. 12,000/- within 3 years. It has also been submitted on behalf on Biman Bihari that in fact for saving his valuable property which was earlier mortgaged to Pramatha, Biman Bihari had to take the subsequent loan from Jiban Krishna. It has been argued that since the earlier transaction with Pramatha was a loan transaction in substance and since it was for re-payment of that loan with interest and for redeeming the earlier mortgage of the concerned property, the appellant Biman Bihari had to procure money and since admittedly the money, namely, Rs. 12,000/- paid by Biman Bihari to the heirs of Pramatha for redeeming the mortgage came from Jiban Krishna as a direct consequence of the transaction entered into by Biman with Jiban, it is strongly indicated that the subsequent transaction with Jiban Krishna was also a loan transaction in substance inspite of its apparent look of a sale transaction. 12,000/- paid by Biman Bihari to the heirs of Pramatha for redeeming the mortgage came from Jiban Krishna as a direct consequence of the transaction entered into by Biman with Jiban, it is strongly indicated that the subsequent transaction with Jiban Krishna was also a loan transaction in substance inspite of its apparent look of a sale transaction. It has been pointed out on behalf of Biman Bihari that he was in possession of the property after the execution of the deed purporting to be a sale deed in favour of Pramatha and similarly even after the execution of the disputed deed in favour of Jiban Krishna also he was in possession, according to his own case. of the entire property or according to the case of Jiban Krishna, admittedly in part, namely, at least of two rooms till the end of July, 1967 and this, it has been argued, indicates that both the transactions was of the same nature, namely, loan in substance. As regards, the value of the property, it has been submitted on behalf of Biman Bihari that the same as mentioned in the deed was inadequate thereby suggesting that the transaction was a loan transaction. It has been pointed out that the deed in question, namely, the deed executed by Biman Bihari in favour of Jiban Krishna also shows at one place that the consideration money was Rs. 13,000/- in the form of 130 notes of Rs. 100/- denomination each. Another factor on which reliance has been placed on behalf of Biman Bihari is that certain property, namely, plot no. 3901 which does not belong to Biman Bihari at all was also included in the deed of Jiban Krishna. An argument was also advanced on behalf of Biman Bihari that the consideration for re-conveyance made by the heirs of Pramatha in favour of Biman Bihari was passed on the 1st April, 1967, as is evidenced by the recital in the concerned deed itself and not on the 3rd April, 1967 on which date the deed in favour of Jiban Krishna was executed by Biman Bihari and this fact also lends support to the case that the transaction with Jiban Krishna was also a loan in substance which loan was taken for the purpose of satisfying the earlier loan taken from Pramatha. 10. Mr. 10. Mr. Roy Chowdhury has cited a decision of a Division Bench of this Court dated the 1st February, 1954 reported in 1980 (2) CLJ 70 (Manindra Nath v. Narendra Krishna). In that decision it was held, and it is also the established law, by this time, that in view of the express language of the definition of 'loan' in s. 2(12) of the Bengal Money Lenders Act, a 'transaction which is in substance a loan', though not in form, would be a loan within the meaning of the statute and that accordingly, a transaction which is a loan in substance, though purporting to be in the form of a sale with a condition of re-transfer or re-purchase, not complying with the provisions of the proviso to s. 58(c) of the Transfer of Property Act, and thus not being in law a mortgage by conditional sale, should still be a 'loan' within the meaning of the Bengal Money Lenders Act. The said decision shows that in determining whether a transaction was a loan in substance, although a sale in form, the questions of possession and value of the concerned property are also factors relevant for consideration. He has also cited another Single Bench decision of this Court reported in 70 CWN 1982 (Buddha Sou v. Mangal Sou) where the following factors were taken into consideration in connection with the question whether the transaction was loan in substance, namely, (i) the existence of a debt of the apparent vendor to one P. D. in a sum of Rs. 1000/-, (ii) payment of that debt by the vendee to P. D. the very day the transaction was entered into with the vendor; (iii) actual payment of Rs. 2,500/-, though the consideration for the subject sold was stated to be Rs. 4,000/-, a consideration which had no relation to its prevailing market price of Rs. 12,000/-, if not more, and (iv) continuance of the possession of the vendor in defiance of the sale deed purporting to extinguish his possession. 11. Now let us look to the facts and circumstances obtaining in the present case. Here, the deed in question, namely, exb. 4/a which was executed on 3.4.67, by Biman Bihari in favour of Jiban Krishna purports to be a sale deed in respect of properties described in the schedules 'Ka' and 'Kha' of that deed for a consideration of Rs. 30,000/-. Here, the deed in question, namely, exb. 4/a which was executed on 3.4.67, by Biman Bihari in favour of Jiban Krishna purports to be a sale deed in respect of properties described in the schedules 'Ka' and 'Kha' of that deed for a consideration of Rs. 30,000/-. The 'Ka' schedule of that deed includes plot nos. 3884, 3897, 3899 and 3898 comprising an area of more or less 8 Cothas 4 Chitaks and the 'Kha' schedule includes plot nos. 3883 and 3901 measuring more or less 4 Cothas in area. The total area thus comprised in the two schedules of that deed, therefore, comes to about 12 Cothas 4 Chitaks. In describing the boundaries of the said properties comprised in the two schedules, Sachi Rani's land has been stared to be the eastern boundary of the said properties. It has been argued on behalf of Sachi Rani and Bimar Bihari with reference to the Settlement map and other relevant documents that Sachi Rani's land to the east as referred to while describing the boundaries in the deed is plot no. 3901 and therefore, it is evident that the said plot no. 3901 which belongs to Sachi Rani was not included in the said deed. Exb. 4 which is a sale deed dated 30.4.56 executed by Nepal Chandra Banerjee in favour of Sachi Rani in respect of properties which include the said plot no. 3901 is the deed on which Sachi Rani's claim to the said plot no. 3901 is based. It is, of course, the case of Jiban Krishna that plot no. 3901 was purchased by Biman Bihari in the benami of Sachi Rani, but Sachi Rani has stated that she paid the consideration money by selling her ornaments. The learned Trial Court has held that there is no convincing evidence to show that the said properties were purchased by Biman Bihari in the benami of Sachi Rani and accordingly the Trial Court has held that Sachi Rani has title to plot no. 3901. We find no sufficient materials to disturb the finding of the learned Trial Court regarding the title of Sachi Rani to plot no. 3901 based on her title deed exb. 4. It therefore follows that Biman Bihari had no right to convey the said plot no. 3901 to Jiban Krishna by the impugned deed dated the 3rd April, 1967. 3901. We find no sufficient materials to disturb the finding of the learned Trial Court regarding the title of Sachi Rani to plot no. 3901 based on her title deed exb. 4. It therefore follows that Biman Bihari had no right to convey the said plot no. 3901 to Jiban Krishna by the impugned deed dated the 3rd April, 1967. However, the question whether the vendor and the vendee had talk for including the plot no. 3901 in the disputed deed dated the 3rd April, 1967 and whether they actually intended to include that plot in the deed is entirely a different matter. 12. It is the case of Jiban Krishna, and evidence also has been led to substantiate, that both Biman Bihari and Sachi Rani represented that the property under transaction including the plot no. 3901 which formed part of a compact compound covered by walls on all sides with one gate belonged to Biman Bihari and there was no defect in title. Such allegation, of course, has been denied by Biman Bihari and Sachi Rani. In order to arrive at a decision on this point let us look to the attending facts and circumstances apart from allegations and counter allegations. The description of boundaries in the disputed deed so far it states that Sachi Rani's land is there to the east of the properties sold is stated by the defendants to be a mistake and they rather rely on the description given in the schedule 'Kha' of the deed with reference to plot no. and area. In this connection, the defendants have also relied on a map exb. G showing the property covered by the deed dated 3.4.67. We have consulted the said map exb. G in the original record. The said map is drawn to scale. The map bears the heading 'Actual area is shown by dotted line with red colour'. We have also noticed that the dotted red line is guarded by a thick black line which is different from the thinner black line in other places. There is, therefore, no question of any confusion about the demarcation of the property in the said map. The demarcated portion in the map also includes the entire plot no. 3901. The map, therefore, purports to show that along with the other plots, plot no. There is, therefore, no question of any confusion about the demarcation of the property in the said map. The demarcated portion in the map also includes the entire plot no. 3901. The map, therefore, purports to show that along with the other plots, plot no. 3901 was also included in the properties covered by the deed in question, namely, the deed dated 3.4.67 executed by Biman Bihari in favour of Jiban Krishna. The said map, as we find in the record of the case, bears the signature of Biman Bihari with date, the 3rd April, 1967. Biman Bihari (PW-2) also categorically admits in his deposition that he made over this map to Jiban Krishna which has been mentioned in the deed and on his admission the said map was marked as exb. G. He also admits in his deposition that the map bears his signature. He admits in his examination-in-chief the correctness of that map filed by defendants. DW-1 Dulal (the son of late Jiban Krishna says in his evidence that Biman handed over the map at the time of sale and he depicted by red colour the property to be sold. In his cross-examination it is suggested to him on behalf of Biman Bihari that the red border was not given by Biman which of course was denied by Dulal. It is very curious that Biman Bihari in his evidence does not say that the red border was not there, on the other hand he admits the correctness of the map; admits his signature on the map and also admits that he made over the map to Jiban Krishna. In the absence of the dotted red lines, the said map would have been totally meaningless and purposeless. There would have been no point in giving a map without any demarcation. The genuineness of this map in toto stands beyond doubt from the evidence of Biman Bihari himself. It is only an afterthought, imported to avoid the consequence of this map that subsequently during the cross-examination of Dulal, it was suggested to him that the red line was not given by Biman. The heading of that map which purports to depict the actual area with dotted red colour is an unmistakable pointer to the fact that the map depicted the actual area by dotted red lines. The said map clearly shows that the plot no. The heading of that map which purports to depict the actual area with dotted red colour is an unmistakable pointer to the fact that the map depicted the actual area by dotted red lines. The said map clearly shows that the plot no. 3901 was included within the depicted area. This map is thus an eloquent testimony to the fact that the plot no. 3901 was also intended by the vendor Biman to be included in the properties relating to which the concerned deed dated the 3rd April, 1967 was executed, irrespective of the legal effect on the question of title to that plot. 13. In this connection, we may refer to the evidence of PW-1 Sachi Rani which also corroborates the case of Jiban Krishna that the entire property including the plot no. 3901 is surrounded by one compound wall with only one gate. Sachi Rani says in her deposition that there is a compound wall around the suit property (of her suit) and her husband's house and there is only one gate to enter in the compound. PW-2 Biman Bihari of course denies in his evidence that 12 cothas of land with structure was agreed to be sold. He also denies the suggestion that the property, having walls on all sides with only one entrance door to the north was agreed to be sold. He, however, categorically says that the 'property with such description was agreed to be mortgaged'. 'His evidence, therefore, clearly shows by way of rather admission that the entire property measuring about 12 cothas of land, within one compound wall with only one entrance door was the subject matter of the transaction irrespective of the question whether the transaction was a mortgage, that is, loan or sale. The evidence so far discussed including the map exb. G clearly shows that plot no. 3901 which is comprised in one compound surrounded by a compound wall covering the other properties of Biman Bihari as delineated in, the said map which was handed over by Biman Bihari to Jiban Krishna was also a subject matter of the transaction by mutual agreement of the parties, and it is evident that not only Biman Bihari had knowledge that the said plot no. 3901 was included in the said deed, but it was so included at his instance otherwise it would not have found place in the demarcated portion of the map exb. G which he personally handed over to Jihan Krishna on the date of the transaction with his dated signature thereon. Since however it has subsequently transpired that Biman Bihari had no title to the said plot which belonged to his wife, Sachi Rani's title to the same is not legally affected by its inclusion in the said deed. 14. It is the case of Biman Bihari that plot no. 3901 was surreptitiously included in the disputed deed behind his back at the instance of Jiban Krishna. It is not understood how this could be scrumptiously done even if it is assumed for the sake of argument that it was Jiban Krishna who got the deed finally drafted and typed. Admittedly, Biman Bihari executed that deed on the date of its registration. The deed contains several signatures of Biman Bihari at different places. It is beyond common sense to assume that Biman Bihari would have made all these signatures in the deed by shutting this eyes. The scheme and arrangement of the recitals in the deed exb.4a do not betray any sign of surreptitious inclusion of plot no. 3901 therein. As a matter of fact, the properties included in that deed were divided into two schedules and the plot no. 3901 was included in the 'kha' schedule. In the recital portion of the deed also this plot no. 3901 has been mentioned. Going through contents of the deed, it will appear that the inclusion of the said plot in the deed was visibly as prominent as the inclusion of other plots of land. Anyone even casting a cursory glance over the deed would have noticed that the plot no. 3901 was also included in that deed. It is extremely difficult to believe that Jiban Krishna would have ventured to surreptitiously and fraudulently include the said plot in the deed and place the same before Biman Bihari for execution wit h the expectation that Biman Bihari would not even cast a cursory or accidental glance at the contents of the deed. It is also equally difficult to believe that Biman Bihari would have executed the deed by putting his signatures thereon at different places without looking into its content at all. It is also equally difficult to believe that Biman Bihari would have executed the deed by putting his signatures thereon at different places without looking into its content at all. The chance of success in a fraudulent endeavour of this nature is very remote and there is strong probability of spot detection in course of a misadventure of this nature. Normally one is not expected therefore to resort to such a highly risky misadventure for exercising a fraud which is fraught with the danger of spot detection. I point out this only to show that even by the test of preponderance of probability Jiban Krishna is not expected to have taken such a high degree of risk in such a daring manner for getting a fraudulent deed executed by Biman Bihari who is admittedly neither an illiterate nor a blind man. In the plaint also there is no whisper as to exactly in what manner the fraud was exercised by Jiban Krishna and how it is that Biman Bihari could not detect such an apparent fraud at the time of execution of deed with his eyes open. Biman in his deposition also does not say anything as to how the fraud was exercised upon him. It is only suggested to DW-1 Dulal in cross-examination that Biman had not the opportunity to go through the deed. In his evidence of course, Biman does not say that although he executed the deed, he had no opportunity to go through the same nor did he plead any such case in the plaint. Having regard to the facts and circumstances it is not understood how he could be deprived of the opportunity of going through the deed when admittedly he executed the same by putting his signatures at different places in the deed. 15. Again, although according to the plaint case plot no. 3901 was wholly out of the picture in the disputed transaction yet during evidence it is stated by Biman Bihari himself that the properties sold by Pramatha's deed were all included in Jiban Krishna's deed and Jiban Krishna's deed also included the 1/3rd share of some rastas (pathways) which he (Biman) purchased from his aunt Yogamaya Devi. That deed by which Biman purchased from Yogamaya is dated the 17th March, 1962 and is marked exb. C. Yogamaya's share in the pathway on plot no. That deed by which Biman purchased from Yogamaya is dated the 17th March, 1962 and is marked exb. C. Yogamaya's share in the pathway on plot no. 3901 was also included in that deed along with other shares. However, if the 1/3rd share of Yogamaya in the pathway on plot no. 3901 was purchased by Biman Bihari and if that was also admittedly sought to be included in the deed of Jiban Krishna, the said facts should not have been suppressed in the plaint and in all fairness the plaint should have included the share in the pathway on plot no. 3901 along with the pathway on plot no. 3883 amongst the properties stated to have been intended to be covered by the disputed deed. In this connection, it is also pertinent to look to exb.14a which is a certified copy of the deposition of Monoranjan Sen in the earlier criminal proceeding over the matter. There a suggestion was given to the said witness on behalf of Biman Bihari that although Jiban had agreed to purchase minor portion of plot no. 3901 from Biman, he in collusion with Jiban had fraudulently included the entire area of plot no. 3901 in the concerned deed although the wife of Biman had purchased major portion of that plot. This suggestion on behalf of Biman also clearly shows that there was talk and agreement between the parties regarding inclusion of at least a portion of plot no. 3901 in the disputed deed, but curiously enough the plaint case does not project that story and in the plaint Biman has taken meticulous care to exclude plot no. 3901 altogether and not to include even an inch of it. Having regard to the facts, circumstances and the materials on record it does not appear that by any fraudulent maneuvering Jiban Krishna included the plot no. 3901 in the disputed deed, it is true that the original title deed regarding the plot no. 3901 is not coming from the custody of the Jiban Krishna but it is Jiban Krishna's case that the said deed was not given to him. 3901 in the disputed deed, it is true that the original title deed regarding the plot no. 3901 is not coming from the custody of the Jiban Krishna but it is Jiban Krishna's case that the said deed was not given to him. It is also Jiban Brishna's case that since Biman Bihari was pressing for early completion of the transaction on the ground that Pramatha's heirs were pressing hard for re-payment of money within stipulated period of three years which was going to expire shortly, he (Jiban Krishna) did not make necessary search, about title, particularly in view of the assurance given by Biman Bihari that the title was clear. 16. Now let us come to the valuation of the property. It is the case of Biman Bihari that the property was under-valued. It is submitted on behalf of Biman Bihari that Rs. 30,000/- would have been an inadequate price for the property. It is the plaint case that the 'Ka' schedule property of the plaint was worth about Rs. 50,000/- at the relevant time, There is no doubt that the question of adequacy of consideration is an important factor in deciding the question whether a transaction is out and out sale or loan in substance. But then the burden is on the plaintiff to prove that the price of the property as mentioned in the deed was inadequate compared to the market price prevailing at the relevant time. As a matter of fact the plaintiff has not adduced any separate evidence to prove that the price was really inadequate. The burden being on him to prove that the price was inadequate and the plaintiff having failed to discharge that burden it must be held that there is nothing to show that the consideration money was inadequate. However, in this case certain deeds relating to the concerned properties are on record and we may look to the same for the purpose of considering whether the price Rs. 30,000/- as mentioned in the disputed deed for the concerned properties was inadequate. Exb. 4c is a sale deed dated 17.3.62 executed by Yogamaya in favour of Biman Bihari in respect of .013 millesimal of the land in the same property for a consideration of Rs. 150 only which is very insignificant price. 30,000/- as mentioned in the disputed deed for the concerned properties was inadequate. Exb. 4c is a sale deed dated 17.3.62 executed by Yogamaya in favour of Biman Bihari in respect of .013 millesimal of the land in the same property for a consideration of Rs. 150 only which is very insignificant price. It is of course true that the property conveyed by that deed in 1962 in favour of Biman Bihari was share in rastas and therefore the price was obviously lesser than the price of adjacent non-rasta lands but even then the price of the share in rastas will be an index as to how high may be the price of the abutting lands. If the abutting lands are highly valuable the value of the adjoining rastas will reflect the same although it will be comparatively lesser than the value of the adjoining lands. Here the 1962 value of the rastas does not indicate that the value of the adjoining properties would be at all inadequate at R.I. 30,000/- in 1967. We have also another deed on record, exb. 6 by which the plaintiff's mother had given the plaintiff her 1/3rd share in the properties involved in the present suit. That deed was executed on 21.12.59 and in that deed the value of .076 millesimal out of .228 millesimal land in 1/3rd share was shown as Rs. 6,000/-. At that rate the price of about 12 cothas at the end of 1959 would come somewhere in the neighbourhood of Rs. 15,000/-. Therefore the price of Rs 30,000/- in respect of the selfsame 12 cotha property in the year 1967 after only about 7 years cannot be said to be inadequate in the absence of any specific material to the contrary. Then again we have yet another deed, exb.-4 which was executed in favour of Sachi Rani on 30.4.56 in respect of property covering .052 millesimal for a price of Rs. 2,500/-. At that rate the price of 12 cothas would come to something in the neighbourhood of Rs. 9,000/- in April, 1956. By that standard also the price of property covering about 12 cothas in the same area at Rs. 30,000/- in April, 1967 cannot be stated to be inadequate when apparently that price is comparatively higher more than three times the price which was prevailing about 11 years ago. 9,000/- in April, 1956. By that standard also the price of property covering about 12 cothas in the same area at Rs. 30,000/- in April, 1967 cannot be stated to be inadequate when apparently that price is comparatively higher more than three times the price which was prevailing about 11 years ago. Having regard to these deeds which relate to more or less the self-same property involved in the present suit it cannot be said that a consideration of Rs. 30,000/- in April, 1967 for the property was inadequate. The decision on the question of adequacy of consideration, therefore, does not go in favour of the plaintiff. 17. Now we come to the question of possession. It is the case of Biman Bihari that even after the execution of the deed in question he was in possession of the entire property till he was dispossessed by Jiban Krishna on 30.7.67. The case of Jiban Krishna, on the other hand, is that after the execution of the deed Biman Bihari delivered possession of the entire property to Jiban Krishna except two rooms which .on request he was permitted to occupy as a tenant for three months and which he subsequently vacated on 30.7.67. It is also the case of Jiban Krishna that Biman Bihari left some of his articles making a list thereof and he subsequently took away some by granting receipt and some of the articles were also sold by him. In paragraph 6 of the plaint it has been stated that when the plaintiff was possessing the 'Ka' and 'Kha' schedule properties of the plaint after the execution of the deed in question Jiban Krishna dispossessed him from the said properties on 30th July, 1967 by unauthorised interference and by force. It is, however, an admitted fact that subsequently a police officer was inducted as tenant thereby Jiban Krishna but then there is no whisper either in the plaint or in evidence that on being forcibly dispossessed by Jiban Krishna on 30-7-67 Biman Bihari took any steps in the matter. He neither reported to the police nor brought any legal action in the form of any civil suit or criminal proceeding. It is against normal human conduct that one will remain silent on being forcibly dispossessed from his own residence. He neither reported to the police nor brought any legal action in the form of any civil suit or criminal proceeding. It is against normal human conduct that one will remain silent on being forcibly dispossessed from his own residence. The very fact that Biman Bihari did not take any action whatsoever nor even lodged a G.D. nor sent any lawyer's notice to Jiban Krishna soon after the alleged dispossession or ever clearly indicates that the plea of forcible dispossession is an afterthought. It is more surprising that Biman Bihari would go to tender Rs.35,000/- to Jiban Krishna in October, 1967, as his case is, for getting re-conveyance of the property even after he was dispossessed forcibly by Jiban Krishna at the end of July, 1957. It is also very striking that according to the plaint case when in October, 1967. Biman Bihari went with Rs. 35,000/- for getting re-conveyance of the property Jiban Krishna did not turn him out at the threshold but rather began to pass time with various pretexts as alleged in para 9 of the plaint and ultimately refused to release the property. If really Jiban Krishna had forcibly dispossessed Biman Bihari at the end of July as alleged Biman Bihari would not have certainly gone to Jiban Krishna in October for seeking re-conveyance of the property in terms of the alleged earlier verbal agreement with the expectation that although Jiban Krishna had forcibly dispossessed him only about 3 months back in flagrant violation of the alleged verbal agreement yet he would be good enough now to re-convey the property in terms of the agreement. It is also improbable that Jiban Krishna would entertain Biman Bihari in October after dispossessing him in July and pass time on various pretexts, as alleged instead of turning him out from the threshold when he had already dispossessed Biman Bihari forcibly in violation of the alleged agreement. 18. There are yet more surprising facets of the plaintiff's story. It is also improbable that Jiban Krishna would entertain Biman Bihari in October after dispossessing him in July and pass time on various pretexts, as alleged instead of turning him out from the threshold when he had already dispossessed Biman Bihari forcibly in violation of the alleged agreement. 18. There are yet more surprising facets of the plaintiff's story. It is Biman Bihari's case in paragraph 10 of the plaint that after Jiban Krishna finally refused to release the property which must have occurred in or after October, 1907 Biman Bihari became suspicious at such behaviour of Jiban Krishna (as if he had no reason to be suspicious earlier when he was forcibly dispossessed) and took a copy of the disputed deed executed by him in favour of Jiban Krishna and then from the copy of the deed he could come to know that Jiban Krishna had fraudulently included plot no. 3901 in the said deed and that was how he first acquired knowledge about the fraudulent inclusion of the said plot in the said deed by Jiban Krishna. It is not difficult to understand that Biman Bihari had to take this plea as to how he came to know about the contents of the said deed so as to discover the fraudulent inclusion of the said plot therein because he was required to make out a case that he had no knowledge of the contents of the deed at the time when he executed the same in April, 1967. Such plea on the part of Biman Bihari is, however, totally scattered and belied by the materials on record. The certified copy of the disputed deed, exb. 4a which he has been filed by and marked exhibit at the instance of Biman Bihari himself shows that it was obtained by Biman Bihari as far back as on 26.9.67. It is, therefore, evident that the certified copy of the deed was obtained by Biman Bihari in September, 1967, and, therefore his plea that he came to know of the contents thereof including the fraudulent inclusion of plot no. 3901 therein only on taking a copy of the deed after he was turned away by Jiban Krishna in or after October 1967 is a blatant falsehood. 19. 3901 therein only on taking a copy of the deed after he was turned away by Jiban Krishna in or after October 1967 is a blatant falsehood. 19. In this connection, it is also to be pointed out that in paragraph 14 of the plaint, it is the plaintiff's case that the cause of action arose on 6.10.67 but how it arose on that date has not been indicated in the plaint. According to the plant case Biman Bihari approached Jiban Krishna with a bank draft for Rs. 25,000/- dated 6-10-67 brought by his brother-in-law, Dr. Guruprasanna, but for that reason alone the cause of action could not have arisen on the date on which the bank draft was issued because the plaintiff's case is that even after that date Jiban Krishna passed time on various pretexts and subsequently refused to release the property. Therefore, the refusal came on a subsequent date and not on 6.10.67 and consequently the cause of action must have arisen, if at all, on some date subsequent to 6.10.67 and not on 6.10.67 but the plaintiff, it seems, forgot to choose any such subsequent date. We mention this only to show that the plaintiff's case inherently lacks consistency and cohesion and is rather presented as a conglomeration of various absurd and self defeating pleas making a mess of an ill-conceived farrago. 20. It is however to be mentioned here that the plaint episode that Biman Bihari collected Rs. 25,000/- from his brother-in-law, Dr. Guruprasanna and went to Jiban Krishna for getting re-conveyance and that there was a talk for executing a deed in favour of Dr. Guruprasanna's wife, who is the sister of Biman Bihari has been totally abandoned in evidence. There is no whisper about all these things in the deposition of Biman Bihari although elaborate pleading about the same was made in the plaint. Another aspect of Biman Bihari's case which suffers from inherent improbability is his plea that although he received only Rs. 13,000/- from Jiban Krishna, there was an oral agreement for getting re-conveyance of the property on payment of Rs. 35,000/- within six months. According to the plaint case Biman Bihari was, therefore, required to pay almost three times the money he had taken and such escalated amount had to be paid only within six months. 13,000/- from Jiban Krishna, there was an oral agreement for getting re-conveyance of the property on payment of Rs. 35,000/- within six months. According to the plaint case Biman Bihari was, therefore, required to pay almost three times the money he had taken and such escalated amount had to be paid only within six months. According to the plaint case within the period of that six months his own sister's husband, Dr. Guruprasanna agreed to pay him at least Rs. 25,000/-, if not more, for getting back his property. Dr. Guruprasanna is a Doctor, a medical practitioner and is therefore indeed not a man without means. He is the husband of Biman Bihari's own sister and thus a close relation of Biman Bihari. It is grossly unnatural that when Biman Bihari required money and that too only Rs. 12,000/- six months earlier for getting re-conveyance of the property from the heirs of Pramatha, he instead of approaching his sister's husband should approach a stranger Jiban Krishna for taking a loan on condition of re-paying almost three times the said amount within a short period of six months. This is a piece of circumstances, which is a strong pointer to the fact that the transaction was not a loan but out and out sale. Had Biman Bihari really thought of taking a loan of Rs. 12,000/- only in April, 1967 he could have easily approached his own sister's husband for getting the same on far more easy and reasonable terms. 21. There are also several documents on record which were written and executed by Biman Bihari himself and which show that the transaction was a sale transaction Exb. C is an ekrarnama dated 3.4.67, which was executed by Biman Bihari. This ekrarnama executed by Biman Bihari himself shows that after execution of the deed he was in permissive possession of two rooms of the first floor for three months only. There is a general plea taken by Biman Bihari at the time of giving evidence that he was forcibly made to write or sign a lot of papers by the police officers at Lalbazar at the instance of Jiban Krishna. It is his case in evidence that many times he was called to Lalbazar by the Detective Department and he has also produced some requisition slips. It is his case in evidence that many times he was called to Lalbazar by the Detective Department and he has also produced some requisition slips. The fact that he was called to Lalbazar presumably in the background of complaint lodged by Jiban Krishna does not necessarily lead us to the conclusion that he was forcibly made to sign different papers there. What is really surprising is that Biman Bihari did not make any such complaint anywhere that he was forcibly made to sign various papers at Lalbazar, and even in his plaint also he did not take any such plea. Jiban Krishna however took specific plea in his written statement regarding some specific documents signed or executed by Biman Bihari, but inspire of that Biman Bihari did not take any plea even by way by amendment of the plaint that he was forcibly made to sign some papers at Lalbazar, although he had occasion to amend the plaint in respect of some matters. As regards the said ekrarnama dated 3.4.67, which is the very date on which the disputed deed was also executed by Biman Bihari, he says In his evidence that he signed the ekrarnama but he did not know the contents of the same. Indeed it is very difficult to believe that he will sign the ekrarnama and will not know the contents of the same. But then he also admits that Jiban Krishna told him that an ekrarnama had to be prepared. Biman Bihari also says that subsequently Jiban Krishna got two receipts signed by him for occupying the premises as a tenant. This readily lends support to the case of the defendants that after the execution of the deed Biman Bihari wall allowed to occupy two rooms as tenant for three months at a monthly rental of Rs. 150/-. If really there were no collateral agreement between the parties to the effect that Biman Bihari would occupy two rooms as tenant under Jiban Krishna, he would not have put his signatures on two receipts as admitted by him for occupying the premises as a tenant. His evidence does not at all show that this signatures of the ekaranama and on the rent receipts were forcibly or fraudulently obtained by Jiban Krishna. His evidence does not at all show that this signatures of the ekaranama and on the rent receipts were forcibly or fraudulently obtained by Jiban Krishna. The conduct of Biman Bihari in executing the ekrarnama and in putting signatures on the rent receipts, is not only consistent with but is rather strongly suggestive of the truth of the case of the defendants that the transaction in question was an out and out sale transaction. It has been suggested on behalf of Biman Bihari to DW-1 Dulal in cross-examination that by cheating Biman the ekrarnama was procured in collusion with Chitta Ganguly and Gobinda Typist, There is no suggestion, far less any evidence as to how that collusion and cheating took place. On the other hand the evidence of Biman Bihari, as we have already pointed out, clearly shows that Jiban Krishna told Biman Bihari that an ekrarnama had to be prepared and he had not only knowledge of the same but he also executed the same voluntarily. It is also the case of the defendants that Biman Bihari issued letters to his tenants asking them to pay rent to Jiban Krishna. These letters are marked exb B5 and B6 and both these letters are dated the 3rd April, 1967 and they contain the admitted signatures of Biman Bihari. In his evidence Biman Bihari says that Jiban Krishna told him that letters had to be given to the tenants and so he signed. Therefore, it is not a fact that Jiban Krishna got those letters signed by Biman Bihari by exercising any fraud, far less by force or coercion. On the other hand Biman Bihari signed those letters knowing the contents and purpose of the same as even according to his own evidence he signed the same because Jiban Krishna told him that letters had to be given to the tenants. 22. Now we come to the question as to what amount of money was paid by Jiban Krishna to Biman Bihari for the transaction in question. The case of Jiban Krishna is that he paid Rs. 30,000/- to Biman Bihari on the date of execution and registration of the deed which was 3rd April, 1967 as the recital in the deed itself shows. On the other hand, it is the case of Biman Bihari that Jiban Krishna had paid only Rs. The case of Jiban Krishna is that he paid Rs. 30,000/- to Biman Bihari on the date of execution and registration of the deed which was 3rd April, 1967 as the recital in the deed itself shows. On the other hand, it is the case of Biman Bihari that Jiban Krishna had paid only Rs. 13,000/- to Biman Bihari on 1st April, 1967 on which date the heirs of Pramatha executed the deed of re-conveyance in favour of Biman Bihari, although the deed was registered on 3rd April, 1967. It is the further case of Biman Bihari that out of the said amount Rs. 12,000/- was paid to the heirs of Pramatha for getting the said deed executed by them. It is also the case of Biman Bihari that no payment of money at all took place on 3.4.67. In schedule 'Gha' of the deed executed by Biman Bihari in favour of Jiban Krishna the amount has been described as 130 pieces of 100 rupee notes. It has been argued on behalf of Biman Bihari that the said description itself shows that only Rs. 13,000/- was paid under that deed as is evident from the recital that 130 pieces of 100 rupee notes were received. It is the case of the defendants that the figure 130' in the schedule 'Gha' was a typographical mistake. Having regard to the facts and circumstances, we are also of the opinion, as was the trial court that the same was really a mistake. In the said 'Gha' schedule itself the total amount of consideration money received has been written both in figure, and in words as Rs. 30,000/- in cash. It is also the case of Biman Bihari that there was an agreement between the parties that the deed would be a sale deed showing the consideration money as Rs 30,000/-. In the deed also at several other places including the recital at the very beginning of the deed the consideration money has been described as Rs. 30,000/- both in figures and in words which is consistent even with the case of Biman Bihari that the agreement was that the deed would be executed mentioning therein Rs. 30,000/- as the consideration money. In the circumstances, it is absurd that 130 pieces of 100 rupee notes' would have been stated in the deed at one place to show the break-up of Rs. 30,000/- as the consideration money. In the circumstances, it is absurd that 130 pieces of 100 rupee notes' would have been stated in the deed at one place to show the break-up of Rs. 30,000/- unless it was an accidental mistake. 23. Now coming back to the question as to what amount of money was paid by Jiban Krishna to Biman Bihari we look to the evidence of Biman Bihari. As we have already mentioned the plaint case is that Rs. 13,000/- was borrowed by Biman Bihari from Jiban Krishna. But in evidence Biman Bihari nowhere says that Jiban Krishna paid him Rs. 13,000/-. His evidence is that Jiban Krishna paid him Rs. 12,000/- on 1.4.47 for payment to the heirs of Pramatha. In his cross-examination he says that in the house of Pramatha. Jiban Krishna paid him Rs. 12,000/- on 1.4.67. So there is a patent inconsistency between the plaint and the evidence of the plaintiff as to whether Jiban Krishna paid Rs. 13,000/- or 12,000/-. Biman Bihari says in his evidence that Jiban Krishna agreed to pay him Rs. 12,000/- provided he would execute a sale deed for Rs. 30,000/-. Therefore, not that there was any agreement for payment of Rs. 13,000/- as pleaded in the plaint. The plaint story of Rs. 13,000/- which was not adhered to in evidence, it is difficult to understand, was imported for the purpose of taking advantage of the accidental mistake made at one place in the deed in giving the break-up of the consideration money received in cash. Jiban Krishna's son DW-1 Dulal testifies to the fact that Rs 30,000/- was paid by Jiban Krishna to Biman Bihari on 3.4.67, the date on which the disputed deed was executed and registered. 24. During the pendency of the suit Jiban Krishna died. The certified copy of his earlier deposition in the criminal proceeding between the parties has, however, been marked exb. 14 in the trial at the instance of Biman Bihari. Our attention has been drawn on behalf of Biman Bihari to the said deposition where Jihan Krishna said that beside him, his lawyer Monoranjan, a peon of his office. Biman Bihari, Chittababu and two of their friends, Sandip and Chandra Madhab were present and none else was present in the registration office. Our attention has been drawn on behalf of Biman Bihari to the said deposition where Jihan Krishna said that beside him, his lawyer Monoranjan, a peon of his office. Biman Bihari, Chittababu and two of their friends, Sandip and Chandra Madhab were present and none else was present in the registration office. It has been submitted that the earlier deposition of Jiban Krishna shows that Dulal was not present of the registration office and as such the evidence of Dulal regarding the alleged payment of Rs. 30,000/- by Jiban Krishna to Biman Bihari is not acceptable. It is however quite likely that after giving out some names when Jiban Krishna stated that none else was present in the registration office, he must have meant, in that particular context, that no other outsider was present there in connection with that transaction. He might have thought it superfluous in that context to mention about the presence of his son along with him. Jiban Krishna said in his evidence in the criminal proceeding that on the day of execution of the deed he drew Rs, 30,000/- from Allahbad Bank. In support of that in this litigation a statement of the Savings Bank Account of Jiban Krishna issued under the signature of the manager of the Bank which was sent to the trial court in response to a summons issued to the Bank for production of the account of Jiban Krishna, was marked as exb. M. Much argument has been advanced on behalf of Biman Bihari that this statement of account exb. M is not admissible in evidence in view of the provisions of the Bankers' Books Evidence Act, 1891. Under s. 4 of the said Act a certified copy of any entry in a banker's book becomes admissible as prima facie evidence of the existence of such entries. M is not admissible in evidence in view of the provisions of the Bankers' Books Evidence Act, 1891. Under s. 4 of the said Act a certified copy of any entry in a banker's book becomes admissible as prima facie evidence of the existence of such entries. Subsection (8) of s. 2 defines certified copy thus : "Certified copy" means a copy of any entry in the books of a bank together with a certificate written at the foot of such copy that it is a true copy of such entry, that such entry is contained in one of the ordinary books of the bank and was made in the usual and ordinary course of business, and that such book is still in the custody of the bank, and where the copy was obtained by a mechanical or other process which in itself ensured the accuracy of the copy, a further certificate to that effect, but where the book from which such copy was prepared has been destroyed in the usual course of the bank's business after the date on which the copy had been so prepared, a further certificate to that effect, each such certificate being dated and subscribed by the principal accountant or manager of the bank with his name and official title". Evidently, the statement of accounts relating to the Savings Bank Account of Jiban Krishna Dey which has been marked exb. M, although bears the signature of the manager of the bank, does not contain any such certificate as would satisfy the requirement of the said definition of 'certified copy' contained in the Banker's Books Evidence Act, 1891. The defendants tried to get the said defect, which is more or less of the nature of a formal one, removed by causing production of the original accounts book of the bank during the hearing of the present appeal. This Court also, on the prayer made by the respondent-defendants in this appeal, issued direction upon the bank authorities for production of the same, but inspite of efforts the bank authorities could not make the same available as it related to distant past. In the circumstances, on the ground of non-compliance of the provisions of the Banker's Books Evidence Act, 1891, though the noncompliance is more or less of a technical nature, the said statement of accounts exb. In the circumstances, on the ground of non-compliance of the provisions of the Banker's Books Evidence Act, 1891, though the noncompliance is more or less of a technical nature, the said statement of accounts exb. M does not become admissible in evidence and therefore should be kept out of consideration. 25. That however does not mean that the other evidence regarding payment of Rs. 30,000/- by Jiban Krishna to Biman Bihari also should be discarded simply because the statement of bank accounts has been kept out of consideration on technical ground. Here we should however mention that the fact that Jiban Krishna actually withdrew the sum of Rs. 30,000/- from the bank on 3-4-67 is virtually admitted as appears from the suggestion given to DW-1 Dulal in his cross-examination on behalf of Biman Bihari that his father withdrew Rs. 30,000/- on 3-4-67 in order to create evidence. From the earlier deposition of Jiban Krishna in the criminal proceeding as well as from the evidence of DW-1 Dulal the defendants case of payment of Rs. 30,000/- by Jiban Krishna to Biman Bihari on 3-4-67 gets sustenance in addition to the recital in the deed as well as to other circumstances. Our attention has been drawn on behalf of Biman Bihari to the petition of complaint addressed by Jiban Krishna to Chief Minister of West Bengal wherein it was stated that the dues of the heirs of Pramatha amounting to Rs. 12,000/- was paid by Biman Bihari out of Rs, 30,000/- paid by Jiban Krishna and by prior arrangement Rs. 12,000/- was paid at the time of execution of the deed by Biman Bihari and balance Rs. 18,000/- was paid at the time of registration thereof. It has been submitted that what has been stated in the petition of complaint is inconsistent with the deposition of Jiban Krishna in the criminal proceeding to the effect that he paid Rs. 30,000/- to Biman Bihari at the registration office inasmuch as the petition of complaint shows that the amount was paid in two instalmenls but the deposition of Jiban Krishna shows payment of Rs. 30,000/- in one instalment. We have considered the matter and we do not find any substantial inconsistency. 30,000/- to Biman Bihari at the registration office inasmuch as the petition of complaint shows that the amount was paid in two instalmenls but the deposition of Jiban Krishna shows payment of Rs. 30,000/- in one instalment. We have considered the matter and we do not find any substantial inconsistency. It is the case of Jiban Krishna that Pramatha's heirs executed the deed in favour of Biman Bihari on 3.4.67 at the registration office and it is nothing unnatural that Jiban Krishna might have paid Rs, 12,000/- first to Biman Bihari there at the registration office for payment of the same to the heirs of Pramatha while they executed or parted with the deed and within a short time thereafter he might have paid the balance amount of Rs. 18,000/- to Biman Bihari while Biman Bihari executed the deed in favour of Jiban Krishna there at the registration office. It is true that the deed executed by the heirs of Pramatha prima facie shows that it was executed on 1.3.67 and payment of Rs. 12,000/- as consideration was also made on that date and this prima facie aspect of the said deed has been strongly relied upon on behalf of Biman Bihari. But then the deed executed by Biman Bihari in favour of Jiban Krishna also has a prima facie aspect to show that the consideration money of Rs. 30,000/- was paid on the date of its execution, namely, 3.4.67. Admittedly Rs. 12,000/- paid to the heirs of Pramatha came from Jiban Krishna. Therefore, the prima facie presumptions of the two deeds regarding the date of payment cannot stand together. Let us consider the matter from the angle of preponderance of probability. Biman Bihari's case is that he took loan of Rs. 12,000/- from Jiban Krishna and as a security for that he had to execute a deed in favour of Jiban Krishna in the form of a sale for Rs. 30,000/-. In this background, it does not appear at all probable that Jiban Krishna would have paid Rs. 12,000/- on 1.4.67 when his own deed was not yet prepared at all, because in that event Jiban Krishna would have practically no evidence and no security in respect of his payment to Biman Bihari. 30,000/-. In this background, it does not appear at all probable that Jiban Krishna would have paid Rs. 12,000/- on 1.4.67 when his own deed was not yet prepared at all, because in that event Jiban Krishna would have practically no evidence and no security in respect of his payment to Biman Bihari. On the other hand, it is quite probable that although the deed from Pramatha's heirs was written on 1.4.67, it was in fact executed on 3.4.67 or that even if it were written and executed by the heirs of Pramatha on 1.4.67, it remained in their custody till they received the consideration money on 3.4.67. It may be noted here again that both the deeds were registered on 3.4.67. Having regard to the facts, circumstances and evidence and also to the preponderance of probability we have no hesitation to hold that Jiban Krishna paid Rs.30,000/- to Biman Bihari on 3.4.67 at the registration office. 26. We would now look to a very significant aspect relating to the question of the amount under the disputed transaction. It is the pointed case of Biman Bihari that there was no agreement for payment of Rs. 30,000/- by Jiban Krishna to Biman Bihari and the agreement was for payment of Rs. 13,000/- only as loan which was reduced to 12,000/- in evidence. But curiously enough in paragraph 7 of the plaint in Sachi Rani's Title Suit No. 5/75, it has been categorically stated that Biman Bihari approached Jiban Krishna and it was agreed that Jiban Krishna would advance Rs. 12,000/- for re-payment to the heirs of Pramatha and would also advance a further sum of Rs. 18,000/- to Biman Bihari who would execute the deed in the form of conveyance in favour of Jiban Krishna for Rs. 30,000/-. Therefore, it is the case of Sachi Rani, the wife of Biman Bihari that there was agreement between Biman Bihari and Jiban Krishna for advancing a sum of Rs. 12,000/- and also a further sum of Rs. 18,000/- (the total amount of advance thus coming to Rs. 30,000/-) to Biman Bihari by Jiban Krishna in connection with the execution of the deed in question. In paragraph 9 of Sachi Rani's plaint it is stated that Jiban Krishna paid Rs. 13,000/- to Biman Bihari (Rs. 12,000/- for payment to the heirs of Pramatha and Rs. 1,000/- to meet the costs of conveyance). 30,000/-) to Biman Bihari by Jiban Krishna in connection with the execution of the deed in question. In paragraph 9 of Sachi Rani's plaint it is stated that Jiban Krishna paid Rs. 13,000/- to Biman Bihari (Rs. 12,000/- for payment to the heirs of Pramatha and Rs. 1,000/- to meet the costs of conveyance). Then comes the significant paragraph 11 of that plaint wherein it is stated that after the registration of the sale deed, proforma defendant no. 7 (that is, Biman Bihari) demanded the balance of Rs. 17,000/- from Jiban Krishna who refused to pay the same. We thus find that according to the plant case of Sachi Rani, the wife of Biman Bihari there was an agreement for payment of Rs. 30,000/- by Jiban Krishna to Biman Bihari in connection with the deed in question which version is consistent with the case of Jiban Krishna that there was agreement for payment of Rs. 30,000/- to Biman Bihari by Jiban Krishna and not Rs. 12,000/- or 13,000/-. At the same time, Sachi Rani's case on the point gives a death-blow to the case of her husband Biman Bihari that there was an agreement for payment of only Rs. 13,000/- or 12,000/- Biman Bihari in connection with the deed in question. 27. But then we are conscious that a technical objection may be taken that Biman Bihari is not bound by or responsible for the pleading in then plaint of his wife's suit. This technical objection no doubt is technically valid pro tanto although it is admitted by both Biman Bihari and Sachi Rani in evidence that Biman Behari looks after the case of Sachi Rani and Sachi Rani filed the suit with the help of her husband Biman Bihari. But the there is also another aspect of the matter. In Sachi Rani's suit, her husband Biman Bihari is proforma defendant no. 7. The record shows that inspite of service of summons in that suit of Sachi Rani, her husband Biman Bihari did not even enter appearance, not to speak of challenging the averments made in the plaint of that suit. If really Biman Behari had any objection or reservation about the plaint case of Sachi Rani to the effect that there was in fact an agreement for payment of Rs. If really Biman Behari had any objection or reservation about the plaint case of Sachi Rani to the effect that there was in fact an agreement for payment of Rs. 30,000/- by Jiban Krishna to Biman Bihari in connection with the deed in question and that after the registration of the said deed Biman Bihari demanded the balance amount of Rs. 17,000/- from Jiban Krishna, it was only expected that Biman Bihari on receipt of the summons along with copy of the plaint of that case would have rushed to Court and entered appearance in the suit and would have also filed a written statement challenging or at least denying the plaint case of Sachi Rani that there was any agreement for payment of Rs. 30,000/- by Jiban Krishna to Biman Bihari in connection with the deed in question or that after the registration of the deed he demanded the balance amount of Rs. 17,000/- from Jiban Krishna. He, however, did nothing of the sort and kept silent. Such conduct on the part Biman Bihari is in the nature of an admission and can also be taken into consideration by the Court under para-2 of s. 8 of the Indian Evidence Act, 1872 inasmuch as the subsequent conduct of Biman Bihari in not disputing or controverting the particular averment made by Sachi Rani in her plaint although he had the opportunity to do so by filing a written statement, can be prima facie inferred to have been influenced by the truth of the averment of Sachi Rani in respect of certain matter which also had conspicuously fallen for decision in the suit of Biman Bihari that was yet per ding for a contested hearing when he has proforma defendant was confronted by his wife Sachi Rani in her suit with a case adverse to his own case in his pending suit. There is no doubt that silence or non-appearance of a proforma defendant in a suit may not in all circumstances saddle him with any adverse inference elsewhere, but in a situation like this where a suit earlier filed by him as plaintiff is awaiting contested hearing, his wife being a proforma defendant in that suit and at that stage a suit is filed by his wife against the defendants of his suit, making him a proforma defendant in her suit and the core matter of dispute in both the suits is substantially the same and his wife in the later suit makes certain averments in her plaint which are conspicuously inconsistent with the case pleaded by him in his own suit in respect of certain matter in dispute in that suit, an obligation in such circumstances is indeed cast upon him to deny or controvert such averment, if untrue, by filing a written statement in the later suit which obligation he could ignore, as done here, at the cost of the expected consistency of his stand in relation to his own plea so much necessary for making out a convincing case about the truth of the same. 28. Under s. 9 of the Indian Evidence Act facts which support or rebut an inference suggested by a fact in issue or relevant facts are also relevant. In the present case one of the questions is whether there was agreement for payment of Rs. 30,000/- by Jiban Krishna to Biman Bihari in connection with the transaction in question. Having regard to the normal and intimate relationship between the husband and the wife as is reflected by the fact that Biman Behari admittedly looks after the case of his wife Sachi Rani the normal inference is that Sachi Rani would not have falsely pleaded the existence of such agreement merely for the pleasure of embarrassing her husband or for the purpose of helping her husband's adversary. It may be mentioned here that Sachi Rani's averment about the existence of an agreement for payment of Rs. 30,000/- by Jiban Krishna to Biman Bihari does not add any extra dimension to strengthen her own case regarding title to her property included in the deed in question and therefore her averment can not be explained away by drawing any presumption that, although untrue, she might have made such averment to suit her own purpose. 30,000/- by Jiban Krishna to Biman Bihari does not add any extra dimension to strengthen her own case regarding title to her property included in the deed in question and therefore her averment can not be explained away by drawing any presumption that, although untrue, she might have made such averment to suit her own purpose. The inference that is suggested by the facts and circumstances is that her pleading on the point is rather an uncontrolled projection of truth. The further inference is that Biman Bihari, in the circumstances of the case would have controverted the particular pleading of Sachi Rani by filing a written statement, had such averment been untrue. Therefore the fact of such averment by Sachi Rani and the fact that Biman Bihari did not consider it necessary to controvert the slime are, in the circumstances of the case, both admissible under s. 9 of the Indian Evidence Act for consideration. And even in the absence of the relevant provisions of s. 8 and s. 9 making those facts admissible for consideration, the same would have been still relevant under s. 11(2) of the Indian Evidence Act as facts which in the particular facts and circumstances of the case make it highly probable that there existed an agreement for payment of Rs. 30,000/- (and not Rs. 13,000/- or Rs. 12,000/-) by Jiban Krishna to Biman Behari in connection with the transaction in question. But then as the language of s. 11 itself shows, the said section is attracted only when the concerned facts are not otherwise relevant. But here in this case the concerned facts being otherwise relevant both under s. 8 and s. 9 for reasons discussed above, s. 11 of course remains off the field. 29. We may now look to the fact that it is the admitted case of Biman Bihari that Biman Bihari's 2/3rd share in the common passage of plot 3883 as mentioned in schedule 'Kha' to his plaint was undisputedly covered by the agreement between Jiban Krishna and Biman Bihari. This share of common passage is of very insignificant value and it was included in the disputed transaction in addition to the plots covered by the deed of Pramatha. This share of common passage is of very insignificant value and it was included in the disputed transaction in addition to the plots covered by the deed of Pramatha. It has also been admitted in and established from evidence as we have already noticed that the admitted part of the agreement between Jiban Krishna and Biman Bihari in connection with the disputed transaction also included the share of passage on plot no. 3901. We repeat that the value of the share in passage is very insignificant as we have already seen from the deed exb.-4c executed by Yogamaya in favour of Biman Bihari. No share in passages was included in the deed executed in favour of Pramatha presumably because the said transaction was a loan transaction in substance and therefore it was pointless to include any share of passage in that deed which is of insignificant value, but the very fact that the share in passages formed admitted part of the agreement in connection with the disputed transaction although such share is of insignificant monetary value indicates that the transaction was not loan but a sale. Right of passage may be of insignificant monetary value and therefore not important for being included in any loan transaction as security, but such right is of very high importance so as to ensure practical user for the convenience of physical enjoyment of the concerned property where the transaction is sale. The undisputed inclusion of the share of passage in the concerned transaction between Jiban Krishna and Biman Bihari is therefore a sharp pointer to the fact that the transaction was a sale and not loan. 30. In this connection, we may also refer to the evidence of Biman Bihari to the effect that he requested Jiban Krishna to inspect the property before execution of the deed and Jiban Krishna visited the property 2/3 days and made measurement of the property. Had the transaction been a loan transaction Jiban Krishna was not expected to have visited the property on 2/3 occasions and made measurement of the same. In that case he would not be interested in actual measurement of the properly but would have been content with the title deeds of the property. Had the transaction been a loan transaction Jiban Krishna was not expected to have visited the property on 2/3 occasions and made measurement of the same. In that case he would not be interested in actual measurement of the properly but would have been content with the title deeds of the property. The very fact that he took the trouble of visiting the property on several occasions and of making measurement of the same before execution of the deed strongly indicates that the transaction was a sale and not loan. 31. In paragraph 16 of the plaint of Sachi Rani's suit, it has been stated that Jiban Krishna all along knew that the 'Ka' schedule property of her suit which is the 'Ga' schedule property of the suit of Biman Bihari was not actually included in his deed and that is why he (Jiban Krishna) never made any attempt to disturb Sachi Rani's possession therein so long he was alive, Jiban Krishna died on 3.7.73. So according to Sachi Rani's case in her plaint, from 3.4.67 to 3.7.73 (more than 6 years) Jiban Krishna never made any attempt to disturb Sachi Rani's possession in her property because he knew that the said property was not included in his deed. This plea attributing complete innocence to Jiban Krishna with respect to possession of Sachi Rani's property is totally inconsistent with the case that Jiban Krishna fraudulently got that property included in his deed behind the back of Biman Bihari and Sachi Rani. If Jiban Krishna had fraudulently included the property of Sachi Rani in his deed and if he had taken forcible possession of the adjacent property of Biman Bihari at the end of July, 1967 as alleged, it is not at all believable that Jiban Krishna would not have also taken possession of the adjacent property of Sachi Rani when he took possession of Biman Bihari's property, both properties being covered under the same deed and within the same compound. The evidence adduced by the defendants that Jiban Krishna took possession of the entire property covered by his deed is quite acceptable and believable in view of the attending facts and circumstances and it is not difficult to see that it is only for the purpose of covering the belated filing of her suit Sachi Rani has pleaded that she was in possession of the 'Ga' schedule property of Biman Bihari's suit and Jiban Krishna never attempted to disturb her and it is only on his death that his heirs were threatening to dispossess her thereby necessitating the filing of her suit in 1973. 32. It is in evidence that subsequent to the execution of the deed in question Biman Bihari wrote a letter to the Electric Supply Corporation for transfer of Electric Meter in the name of Jiban Krishna and the Electric Supply Corporation also took steps accordingly. A few months' delay in getting the Electric Meter transferred has been commented upon on behalf of Biman Bihari but in our view that is no matter of any significance. Jiban Krishna paid electric bills and also taxes after getting his name mutated. It is also to be mentioned here that the receipts for taking delivery of the deeds executed by the heirs of Pramatha and by Biman Bihari from the registration office were given by them to Jiban Krishna and the receipts having been lost subsequently, Biman Bihari and the heirs of Pramatha wrote to the Registrar for making delivery of the deeds to Jiban Krishna. All these facts are indeed consistent with the case that the transaction was a sale not only inform but also in fact. 33. We have elaborately discussed the relevant facts, circumstances and evidence on record. Now to sum up and conclude. It is true that preceding the transaction by Biman Bihari in favour of Pramatha in the form of a sale deed and the concerned property was subsequently re-conveyed by another deed executed by the heirs of Pramatha (after his death) in favour of Biman Bihari. The initial leaning caused by those facts for invoking a prima facie presumption that the subsequent transaction between Biman Bihari and Jiban Krishna was a loan transaction is however totally shattered by the facts, circumstances and evidence on record which we have analysed in extenso. The initial leaning caused by those facts for invoking a prima facie presumption that the subsequent transaction between Biman Bihari and Jiban Krishna was a loan transaction is however totally shattered by the facts, circumstances and evidence on record which we have analysed in extenso. We have already seen that there are enough materials for coming to a very reasonable conclusion that the transaction in question involved payment of Rs. 30,000/- in cash by Jiban Krishna to Biman Bihari on 3.4.67, as consideration money. Far from appearing that the consideration money was inadequate there are materials on record as we have seen which lend support to adequacy of the consideration money thereby indicating that the transaction was really a sale as it purports to be. As regards the question of possession also we find as we have already discussed that Jiban Krishna came into possession of the entire property covered by the transaction in question except two rooms which were occupied by Biman Bihari with the permission of Jiban Krishna as his tenant for about three months and which were thereafter handed over by Biman Bihari to Jiban Krishna. We have already discussed elaborately the circumstances which render it difficult to hold or believe that Jiban Krishna forcibly dispossessed Biman Bihari from the property at the end of July, 1967. It is also to be mentioned here that nowhere in his examination-in-chief Biman Bihari says that he was forcibly db possessed by Jiban Krishna It is only in his cross-examination he says that Jiban Krishna ousted him by force on 30.7.67, but at the same time he says that he has no witness to prove that by employing 50/60 persons Jiban Krishna drove him away. Having regard to the facts and circumstances it is absolutely an improbable story that Jiban Krishna forcibly drove away Biman Bihari on 30.7.67 with the help of 50/60 persons. Jiban Krishna was not a man of that locality whereas Biman Bihari was a man of that locality since his father's life-time. Having regard to the facts and circumstances it is absolutely an improbable story that Jiban Krishna forcibly drove away Biman Bihari on 30.7.67 with the help of 50/60 persons. Jiban Krishna was not a man of that locality whereas Biman Bihari was a man of that locality since his father's life-time. In the circumstances, it is incredible that it would have been possible for the outsider Jiban Krishna to go to the residence of Biman Bihari and drive him away from there without even creating any commotion in the locality and Biman Bihari also would have meekly submitted to such ouster by an outsider in his own locality so much so that he could not even ask for the intervention of the local people, not to speak of taking any other legal steps over the incident. We have no manner of doubt that the plea of forcible ouster as taken by Biman Bihari is totally a farce and a fiasco. The question of possession of the property rather answers completely in favour of Jiban Krishna and this is a distinctive feature of the transaction vis-a-vis the earlier transaction between Biman Bihari and Pramatha where possession of the property was not parted with by Biman Bihari. We have already discussed the implication of inclusion of path way rights in the transaction in question as well as of the inclusion of plot no. 3901 in the demarcated portion of the signed map which was personally handed over by Biman Bihari to Jiban Krishna on the date of execution and registration of the deed. We have also noticed a good number of prominent creases in the case of Biman Bihari which, in view of the facts, circumstances and evidence on record are found to be too stubborn to be ironed out by any hypothesis of loan transaction in substance. On the other hand, in view of the over helming materials on record we are convinced that the transaction was out and out sale. Since however the 'Ga' schedule property of Biman Bihari's plaint belongs to Sachi Rani and her title therein cannot be affected by the transaction in question inspite of its conscious inclusion in the fold of the transaction at the instance of Biman Bihari the title to that property however was not acquired in law by Jiban Krishna. Since however the 'Ga' schedule property of Biman Bihari's plaint belongs to Sachi Rani and her title therein cannot be affected by the transaction in question inspite of its conscious inclusion in the fold of the transaction at the instance of Biman Bihari the title to that property however was not acquired in law by Jiban Krishna. The decree of the trial court passed in favour of Sachi Rani in her suit, namely, in T.S. 5 of 1975 however can not be sustained and that suit will have to be sent on a limited remand for reasons which we shall discuss in a later paragraph. But the decree of dismissal passed by the trial court in Biman Bihari's suit, namely, T.S. 69 of 1968 needs no interference. It has been argued on behalf of Biman Bihari that in view of the finding of the trial court that Sachi Rani's title to property described in 'Ga' schedule of the plaint of Biman Bihari's suit was out affected by the deed in question, the learned trial court should have at least granted a part decree to that extent in Biman Bihari's suit instead of wholly dismissing it We are however unable to sustain this plea in view of the fact that Biman Bihari's suit is mainly a suit for reliefs under the Bengal Money Lenders Act. But no such reliefs are found available to him and consequently no declaration in respect of any collateral matter is warranted, more so when such collateral matter does not concern his own interest and when Sachi Rani can obtain necessary decree in her suit in respect of that matter. 34. During the hearing of these appeals a petition for amendment of the plaint of her suit was filed on 9.4.91 by Sachi Rani for bringing on record subsequent events alleging that some transfers of portions of the property have since been made by the heirs of Jiban Krishna. On the other hand, it was submitted on behalf of the heirs of Jiban Krishna that they never dealt with nor would in future deal with properties which do form part of the subject matter of F.A. 298 of 1990 arising out of T. S. 5 of 1975. The said petition for amendment of the plaint was considered unnecessary by this Court at this stage. The said petition for amendment of the plaint was considered unnecessary by this Court at this stage. But we make it clear that by reason of the principle of lis pendens the transferees of the properties involved in this litigation or of portions thereof in respect of transfers made during the pendency of the suits including these appeals will be bound by the decisions in these appeals and such transfers will not affect the right, title and interest of the plaintiff Sachi Rani in the 'Ka' schedule property of her suit, namely T.S. 5 of 1975. 35. From the facts, circumstances and evidence on record, as already discussed, we are convinced that Jiban Krishna was in possession of the entire property including the 'Ka' schedule property of Sachi Rani's plaint in T. S. 5 of 1975 and since his death, his heirs are in possession of the same. We are also convinced that 8achi Rani was not in possession of the 'Ka' schedule property of the plaint of T.S. 5 of 1975 on the date of institution of the suit by her. That being so the proper relief which she is entitled to in her suit is declaration of title and recovery of possession. The decree passed by the learned trial court in respect of T.S. 5 of 1975 declaring Sachi Rani's right, title, interest and possession in respect of 'Ka' schedule property of the plaint of that suit was not proper inasmuch as Sachi Rani was not in possession of that property although her title to that property has been established. What would have been proper for the learned trial court, in the circumstances, was to grant a decree for recovery of possession with a declaration of her right, title and interest in the 'Ka' schedule property of that suit. It is true that the learned trial court had directed the defendants of that suit, by an order of mandatory injunction, to restore the property. of that suit to its original condition within one year from the date of the order with liberty to Sachi Rani to get it done herself with right to recover cost of such restoration from the principal defendants in case the defendants failed to comply with the order of restoration. of that suit to its original condition within one year from the date of the order with liberty to Sachi Rani to get it done herself with right to recover cost of such restoration from the principal defendants in case the defendants failed to comply with the order of restoration. In the background of the facts and circumstances of the case, it is however evident that what the learned trial court meant by the mandatory injunction was to require the principal defendants to reconstruct the non-existent structure and to restore the same to Sachi Rani in lieu of the earlier structure which was standing thereon. Sachi Rani filed her suit claiming that she was in possession of the property but was being threatened with dispossession by the heirs of Jiban Krishna. The suit was filed on the 29th June, 1973. On that very date she obtained an ex parte ad interim order restraining the principal defendants from disturbing her possession in the 'Ka' schedule land. It was the allegation of Sachi Rani that inspite of service of notice of the order of ad interim injunction the principal defendants demolished the structure which was standing on her land, It is, however, the case of the defendants that they dismantled the structure even before the institution of the suit as the structure was in a dilapidated condition and was likely to topple down at any time. By an application dated 15th April, 1977 Sachi Rani prayed for certain amendments of the plaint in the cause title as well as in the prayer portion. By the proposed amendments Sachi Rani wanted to include a prayer for a decree of mandatory injunction directing the principal defendants for restoration of the original condition of the pucca structure damaged by the principal defendants during pendency of the suit or for proper damages. Another prayer was also sought to be included and that was for a decree of mandatory injunction for restoration of possession to the plaintiff and/or for a decree for recovery of possession. That application for amendment was disposed of by the trial court by its order no. 75 dated 16.1.78 after contested hearing. By the said order the learned trial court allowed the plaintiff's prayer for amendment of the plaint in part. That application for amendment was disposed of by the trial court by its order no. 75 dated 16.1.78 after contested hearing. By the said order the learned trial court allowed the plaintiff's prayer for amendment of the plaint in part. A reading of the entire order mentioned above shows that the Court was of the opinion that the plaintiff's prayer of amendment for decree for damages and for recovery of possession should be allowed but the prayer for amendment of the plaint in respect of decree for mandatory injunction for restoration of possession to the plaintiff could not be allowed. Accordingly, the learned court directed for amendment of the plaint and the cause title only in respect of prayer for decree of damages and for recovery of khas possession of the suit property. The clerical part of the incorporation of the amendment in the plaint however, as we find, is not fully consistent with the said order of the trial court. However, it is needless to mention that the extent of the amendment allowed will be decided not by the extent of any clerical incorporation in the plaint but by the amplitude of the judicial order of the court itself as reflected here in the said order no. 75 dated 16-1-78. 36. The prayer for amendment of the plaint for mandatory injunction for restoration of possession of the property to its original condition having been rejected by the trial court at the time when the amendment petition was disposed of on a contested hearing and it being also impracticable to implement with any reasonable degree of precision regarding qualitative parity the task of restoring an old dilapidated structure now non-existent for long by a new one, it is not considered meet and proper to direct restoration of the property to original condition by raising any new structure. Since admittedly the structure was dismantled by the defendants and since the title to the land on which this structure stood belonged and yet belongs to Sachi Rani the ends of justice will be met by granting her a decree for damages for the dismantled structure. The trial court also had granted the amendment for inclusion of that prayer in the plaint as we have already mentioned. There is, however, no evidence on record about the quantum of damages that may be granted on that score. The trial court also had granted the amendment for inclusion of that prayer in the plaint as we have already mentioned. There is, however, no evidence on record about the quantum of damages that may be granted on that score. Again, since Sachi Rani is not in possession of the suit property of her suit and since the trial court had earlier granted amendment of plaint for inclusion of a prayer for recovery of possession a decree for recovery of possession in favour of Sachi Rani would be the proper relief in addition to declaration of her title to that property. By the very same order dated 16-1-78 granting the petition for amendment of the plaint in part the learned trial court also directed the plaintiff Sachi Rani to take steps in respect of amount of damages and valuation of the property. In compliance with that direction the plaintiff Sachi Rani filed a petition before the trial court on 23-2-78 tentatively claiming Rs. 5,000/- as damages for the structure demolished and also put Rs. 10,000/- as the total valuation of the suit. It was, however, prayed by her in that petition that she might be exempted from payment of court fee as she was dispossessed during the pendency of the suit. The learned trial court by his order no.78 dated 23.2.78 granted that prayer. The position, therefore is that Sachi Rani did not pay any court fee for her subsequent prayers for damages and for recovery of possession. The question of court fee also has been raised in the memorandum of appeal filed by the defendants as appellants in the F.A. 289 of 90. New, we have found that since the execution of the deed in question Jiban Krishna was in possession of the entire property including the 'Ka' schedule property of Sachi Rani's suit and that Sachi Rani was not in possession of the same at the time of filing her suit. She must therefore pay necessary court fee if she is to be granted any decree for damages and for recovery of possession. The questions of court fee and the quantum of damages to be awarded to Sachi Rani should, therefore, be decided by the trial court offer framing necessary issues on those points only and after taking such evidence on those points as the parties may prefer to adduce. The questions of court fee and the quantum of damages to be awarded to Sachi Rani should, therefore, be decided by the trial court offer framing necessary issues on those points only and after taking such evidence on those points as the parties may prefer to adduce. A limited order of remand in respect of title suit no. 5 of 1973 is therefore warranted. 37. While we dismiss the F.A. 32 of 1981 for reasons elaborately discussed, we however allow the other appeal, namely, F.A. 298 of 90 and set aside the decree of the trial court so far as it relates to T.S. 5 of 1975. We remand the T.S. 5 of 1975 to the learned Sub-ordinate Judge (now Assistant District Judge) 2nd Court Hooghly, for deciding the aforesaid two matters after framing two issues in respect of the same and after allowing the parties proper hearing on these two matters including the opportunity of leading evidence for that limited purpose. We are, however, making it clear that we are challenging the trial court's finding relating to the existence of Sachi Rani's right, title and interest in the 'Ka' schedule property of her plaint and that question will not be re-opened in remand. The trial court after hearing the suit on the limited matters as mentioned above, in accordance with law, will grant a decree of declaration of the plaintiff's right, title and interest to the 'Ka' schedule property along with a decree for recovery of possession provided she puts in necessary court fee as may be determined by the court below in compliance with the direction given above and in accordance with law. The trial court will also grant decree for damages in favour of the plaintiff for the dismantled structure as may be assessed according to law provided the plaintiff puts in necessary court fee for the same. In the event of plaintiff's failure to pay the necessary court fee, the trial court will be at liberty to dispose of the suit according to law. In the result F.A. 32 of 1981 stands dismissed, while F.A. 298 of 90 stands dismissed, while F.A. 298 of 90 stands allowed for a limited remand. There will be no order as to costs in these appeals. Mukul Gopal Mukherji, J.: I agree. F.A. No. 32 of 1981 dismissed; F.A. No. 298 of 1990 allowed and remanded for a limited purpose.