Ranendra Nath Dutt, J.
1. This appeal arises out of a suit filed by the plaintiff-respondent against the defendants-appellants for declaration of title and confirmation of possession or, in the alternative, recovery of possession in respect of plots Nos. 1636, 1757 and 1758 of Mouza Maglampur.
2. The plaintiff's case was as follows:--
The defendants were the owners of the plots, but the defendants sold the plots to Gobordhan Sahdhu Khan, Nirepada Sadhu Khan and Joygopal Sodhu Khan by three different kobalas in 1364-65 B. S. Since their purchase the Sadhu Khans were in possession of the lands. But in Bhadra 1370 B. S. they sold the lands to the plaintiff for Rs. 3.900/- and since his purchase the plaintiff has been in possession. The defendants threatened the plaintiff with dispossession and hence, this suit. The defendants contested the suit. Their defence was that they never sold the lands to the Sadhu Khans. They took loans from the Sadhu Khans, but the Sadhu Khans advanced the loans after obtaining out and out Kobalas from them. There were separate agreements to the effect that if the defendants paid certain sums within certain dates, the Sadhu Khans would retransfer the properties to them. So, the defence in substance was that the transactions were not out and out sales but loan transactions.
3. The Subordinate Judge found that the transactions were not loan transactions but out and out sale. He, therefore, decreed the suit. The Additional District Judge, who heard the appeal, does not appear to have made any independent finding about the nature of the transactions on a consideration of the materials on record but he has said that in view of the proviso to Section 58(c) of the Transfer of Property Act the defendants were not competent to take the plea that the transactions were not out and out sales but loan transactions. When the learned Judge made this finding, he did not consider the effect of Section 37-A of the Bengal Money Lenders Act as amended in 1965. True, the instant transactions took place earlier than that, that is, in 1958. But I have held in Ram Charan Sau v. Tarak Nath Coomar, (S. A. No. 1550 of 1960 (unreported) decided on 10-6-1966 (Cal)) that Section 37-A of the Bengal Money Lenders Act is attracted to transactions entered into even previous to the amendment Act of 1965. So, Section 37-A will be attracted to the instant case also and in view of Section 37-A of tile Bengal Money Lenders Act it must be said that the learned Judge was wrongwhen he said that because of the proviso to Section 58(c) of the Transfer of Property Act, the defendants were not competent to take the plea that the transactions were not out and out sales but loan transactions. The learned Judge should, therefore, have made his own finding about the nature of the transactions on a consideration of the materials on record adduced by the parties. Mr. Goswami submits that the judgment of the learned Judge read as a whole would indicate that the learned Judge was also of the view that the transactions were not loan transactions. It is true that the learned Judge made some incidental findings about repayment and all that. But that is besides the point. Even if there is no repayment, unless it is out and out sale, title does not pass. Moreover, the most important question for decision of the final Court of fact was if the transactions were, in fact, out and out sales or loan transactions and, as I have said, the learned Judge has not made any clear finding in that respect on the evidence on record. The judgment and decree of the learned Judge should, therefore, beset aside.
4. In the result, the appeal is allowed. The judgment and decree of the learned Additional District Judge are set aside and the appeal sent back to him for re-hearing on merits in the light of the observations made above.
5. No order is made as to costs in this appeal in this Court.