PRAHLAD CHARAN PANDA Vs. SALESWAR MAHADEV

JUDGEMENT

(1.) Defendant No. 1 (hereinafter referred to as the mortgagee) is the appellant, in this second appeal, from a reversing decision of the learned 1st Additional Subordinate Judge, Cuttack, whereby he set aside a decision of the Additional Munsif of Jajpur, and decreed the plaintiffs' suit in the circumstances hereinafter stated.

(2.) Plaintiff No. I is a deity called Sri Saleswar Mahadey, plaintiff No. 2 and defendants 2 to 4 are members of a joint Hindu family who are marfatdars of the said deity plaintiff No. 1. Schedule Ka properties, mentioned in the plaint, are stated to be the absolute Debottar properties of the deity plaintiff No. 1- Schedule Kha properties are said to be the ancestral joint family properties of plaintiff No. 2 and defendants 2 to 4.

(3.) The plaintiffs' case, shortly stated, was this : On March, 1948, defendants 2 to 4, by a conditional sale deed (Ext. A), transferred the disputed properties mentioned in Schedule Ka and Kha to defendant No. 1 (appellant herein) by way of mortgage by conditional sale for a consideration of Rs. 300/-. In 1950, defendants 2 to 4 brought a suit for redemption of the said mortgage being Title Suit No. 309/1950 in the court of the Munsif Jajpur. On August 30, 1952 the said Title suit of 1950 was compromised, certified copy of the compromise decree being Ext E in this suit; under the terms of the said compromise decree defendants 2 to 4 were directed to pay Rs. 275/- to defendant appellant herein within 8 months of the decree, failing which the defendant appellant will take dell-very of possession of the said properties; no money was however paid in terms of the said compromise, and thereupon on October 28, 1954 the defendant appellant, in execution of the said decree, took possession of the disputed properties in Execution Case No. 33 of 1954, certified copy of the writ of delivery of possession in the said execution case being Ext. F in this suit. On November 23, 1954, the plaintiffs filed the present suit praying for a declaration to the effect that the plaintiffs are not bound by the said mortgage or the decree passed in the said previous suit, and alternatively for redemption of the suit properties'. Defendants 2 to 4 were ex parte. Defendant No. 1 (appellant herein) alone contested the suit. The defence,--taken, by the defendant appellant herein,--was that the Ka schedule properties were not absolute Debottar of the deity plaintiff No. 1, but private properties of defendants 2 to 4; that the said defendants 2 to 4 as Kartas of the Hindu joint family, took loan for valid legal necessity; that the decree in the said mortgage suit for redemption is valid and binding and was made final, and the suit properties therefore cannot be redeemed, as claimed in the suit.