SAMARU ORAM Vs. MST. SIBAN MUNDANI AND ORS.

JUDGEMENT

(1.) THE second appeal is by Defendant No. 1 against the concurrent decisions of the Courts below decreeing the Plaintiffs' suit for recovery of possession of the mortgaged property on adjudication that the usufructuary mortgage stood discharged under Section 17 of the Orissa Money -Lenders Act, 1939.

(2.) THE Plaintiffs are the sons of the original mortgagor and Defendants 1 and 2 are the sons of the original mortgagee. The Plaintiffs case was that on 3 -4 -1923 their father mortgaged the property usufructuary with the father of Defendants 1 and 2. The mortgagee died about ten years before the suit without delivering possession of the mortgaged property and Defendants 1 and 2 being in possession of the same did not also deliver possession of the mortgaged property to the Plaintiffs. The Plaintiffs filed an application under Section 17(2) of the Orissa Money -Lenders Act on 19 -2 -1966 which was registered as Revenue Case No. 31/7 -1 of 1966 in the Court of the Sub -Divisional Magistrate, Sambalpur and on 14 -9 -1969 the Sub -Divisional Magistrate passed orders declaring the mortgage to have stood discharged and directing Defendants 1 and 2 to deliver possession of the mortgaged property in favour of the Plaintiffs. Since the Defendants 1 and 2 did not comply with the order, the Plaintiffs filed a petition on 6 -11 -1969 for execution of the order. But the Sub -Divisional Magistrate by his order dated 30 -1 -1970 held that he had no jurisdiction to deal with the matter under Section 17(2) of the Orissa Money -Lenders Act. The Plaintiffs accordingly alleged that the period from 19 -2 -1966 to 30 -1 -1970 should be excluded under Section 14 of the Indian Limitation Act while computing the period of limitation for the suit.

(3.) BOTH the Courts below came to the concurrent findings that the sale deed dated 18 -1 -1932 (Ext. A) is a false and fabricated document; that the mortgage security stood discharged under Section 17 of the Act on the expiry of 15 years from the date of the mortgage; that Defendants 1 and 2 continued in possession of the mortgaged property on behalf of the mortgagor and the nature of their possession was permissive and not adverse and that the Plaintiffs having prosecuted the proceedings before the Sub -Divisional Magistrate, Sambalpur in good faith they were entitled to the benefit of Section 14 of the Indian Limitation Act.