UTSABA PRADHAN Vs. KANDHUNI CHOUDHURY

JUDGEMENT

(1.) THIS is an application for review by the unsuccessful appellants whose second appeal (S. A. 130 of 1967) was dismissed by my learned brother A. Misra, J. who has since retired. Defendants 1 to 6 of the trial Court were the appellants in the second appeal and are petitioners before me. The case of the plaintiff-respondents nos. 1 and 2 is as follows: The husband and father-in-law of plaintiff No. 1 borrowed Rs. 200 under a possessory mortgage bond dated 18-5-1919 from sambari Pradhan the paternal grandfather of defendant No. 1 and put him in possession of the suit land measuring 2. 83 acres. Under the terms of the bond, the loan was to carry interest of 1 per cent per month. The mortgagee was to remain in possession and appropriate the income. The stipulation was that accounts would be taken at the end of five years and if the amount due was then satisfied, the mortgagee was to redeliver the property with profits, if any or continue to remain in possession until satisfaction of the dues. The original mortgagee died in 1952 and his son having pre-deceased him. His grandson defendant No. 1 has been in possession of the mortgaged property since then. The mortgage loan stood completely extinguished under Section 17 of the Orissa money Lenders Act (hereinafter referred to as the Act ). The plaintiffs demanded delivery of possession of the property which however was not complied with. The defendants 2 to 6 being in possession of the mortgaged properties as alienees from the mortgagee had been impleaded as a parties. Defendant No. 7 was subsequently impleaded as a party because defendants 2 to 6 claimed title through him. On these allegations, the plaintiffs filed the suit for recovery of possession of the mortgaged property after a declaration that the mortgage loan was satisfied and the mortgage stood extinguished under Section 17 of the Act and for a preliminary decree of rendition of accounts by the mortgagee and the alienees from him.

(2.) THE defenlants 1 to 6 denied the title of the plaintiffs and their ancestors to the suit property and the alleged mortgage in favour of defendant No. 1's grandfather in the year 1919. According to them, defendant No. 7 is the owner of the property in which the plaintiffs have no manner of interest and defendants 2 to 6 have been in possession of portions of the suit property as tenants under defendant No. 7. Defendant No. 7 while claiming that he was owner of the property also alternatively claimed to have acquired title to the suit property by adverse possession in case it was found that the plaintiffs possessed title at any time.

(3.) THE trial Court dismissed the suit on the following findings; (1) Plaintiffs ancestors were the owners of the suit property: (2) the possessory mortgage by the husband and father-in-law of plaintiff No. 1 in favour of the grandfather of defendant No. 1 in the year 1919 is true; (3) Defendant No. 7 acquired title to the suit property from the plaintiffs in the year 1946 under a compromise decree; (4)alternatively, defendant No. 7 has perfected his title to the suit property by adverse possession; and (5) the suit is not maintainable in view of Section 39 of the Orissa Estates Abolition Act, 1951 (hereinafter referred to as the Abolition act ).