DUSHASAN Vs. SUDARSHAN

JUDGEMENT

(1.) THIS second appeal under Section 100 of Code of Civil Procedure is directed against the judgment and decree dated 5th August, 1988 passed by the District Judge, Raigarh in Civil Appeal No. 57-A/1987 whereby the judgment and decree dated 8-5-1987 passed by the Civil Judge Class I, Sarangarh, District Raigarh in Civil Suit No. 30-A/1985 has been reversed and the suit of the Appellant has been dismissed. (Hereinafter the parties shall be referred to as per their description in the judgment of the trial Court.)

(2.) BRIEFLY stated the case of the Plaintiff is that the land described in Schedule-A was recorded in the name of his father Gaura. The Plaintiff, Duryodhan and Sudarshan are sons of Gaura whereas Vrandavati and Nanki Bai are his daughters. The suit property was property of the Plaintiff and the Plaintiff mortgaged the suit land for a consideration of Rs. 5,000/- with the Defendant No. 1 for a period of 5 years and thereafter the suit land was to be returned to the Plaintiff and to evidence this transaction, the document of Ex. D-1 was executed. However, when the Defendant No. 1 did not return the suit land till 1985, a suit for declaration of title and recovery of possession has been filed. The Defendant No. 1 in reply to the averments of the plaint stated in his written statement that he had entered into an agreement to sell the suit land and in pursuance of the same, an agreement was executed by the Plaintiff and since then, he is in possession over the suit land and cultivating the same. The Plaintiff never requested for return of the suit land and the Plaintiff has to execute a registered sale deed as per the agreement.

(3.) IN first appeal, the learned First Appellate Court allowed the appeal preferred by the Defendant No. 1 and dismissed suit with a finding that the Plaintiff has failed to prove that he mortgaged the suit land to the Defendant No. 1 and the Defendant No. 1 is entitled to protect his possession over the suit land as per Section 53 (A) of the Transfer of Property Act and accordingly, decree of possession in favour of the Plaintiff was set aside.