HARI PADHAN Vs. MITRABHANU BABU GOUNTIA

JUDGEMENT

(1.) IT is the unsuccessful defendant in both the Courts below who has come up with this Second Appeal which arises out of a suit brought by the plaintiff for declaration of his title and for recovery of possession. The disputed land appertains to plot Nos. 431 and 437. Out of total area of 2.08 acres of plot No. 431, 1 acre only is in dispute in the appeal. Out of total area of 1.05 acres of plot No. 437, only .25 acre is in dispute, in the appeal.

(2.) THE plaintiff's case is that he is sixteen annas Lambardar of the village in which the land is situate. The original tenant Jagannath Seth made a transfer in favour of the present defendant in respect of one acre out of plot No. 431 and .25 of plot No. 437. The plaintiff -landlord had taken steps under the provisions of the C. P. Tenancy Act for declaration that the transaction of sale in favour of the present defendant was not binding against the landlord and for obtaining possession under Section 47 of the said Act. That tenancy case is stated to have succeeded ultimately in favour of the plaintiff in the year 1942. It is further alleged by the plaintiff that out of the total area of 2.08 acres he has taken usufructuary mortgage of .68 acre from the recorded tenant Jagannath Seth. The defendant having unlawfully cut and carried away paddy from the land, in dispute, the present suit was brought for declaration of plaintiff's title in respect of 1.25 acres which was the subject -matter of transfer in favour of the defendant by the original tenant Jagannath Seth and for declaration of his rights as a usufructuary mortgagee in respect of .68 acre appertaining to plot No. 431.

(3.) REGARDING the mortgage, both the Courts have found that the plaintiff has been able to prove his mortgage in respect of .68 acre and they have believed the actual delivery of possession by Jagannath Seth in favour of the plaintiff which was supported by the witnesses examined on behalf of the plaintiff.