KASINATH SAHU Vs. POTHANI NAIK AND ORS.

JUDGEMENT

(1.) THIS is an appeal against a confirming judgment of the Subordinate Judge, Aska upholding the decision of the Munsif, Aska decreeing the Plaintiff 's suit for redemption. On 12 -6 -1939, the Plaintiff No. 1 who is admittedly the owner of the disputed properties measuring 21.83 acres executed a simple mortgage (Ext. 1) in respect of the same in favour of Defendant No. 1 for Rs. 100/ -. The loan amount was to bear interest at twenty -five percent per annum and the Plaintiff No. 1 had agreed to redeem the same by the Dol Purnima on the following year. But he could not redeem the mortgage. The Plaintiff 's case is that in 1950 the Defendant No. 1 told Plaintiff No. 1 that a sum of Rs. 700/ - was due to him under the mortgage and demanded the same. As the Plaintiff could not pay the dues, he delivered possession of the lands to Defendant No. 1 asking him to treat the transaction as a usufructuary mortgage and to remain in possession of the land till the full mortgage amount was discharged. It is his case that by remaining in possession of the lands, the Defendant No. 1 has realised by way of usufruct more than the amount due to him under the mortgage. As in spite of repeated demands by the Plaintiff, Defendant No. 1 did not deliver possession of the lands to him, he filed the suit for redemption and recovery of possession of the lands and for determination of mesne profits due to him from the Defendants.

(2.) DEFENDANT No. 1 in his written statement admitted the execution of the simple mortgage bond in his favour by the Plaintiff No. 1. He stated that in 1941, the first Plaintiff paid up the mortgage dues to him and redeemed the properties. Subsequently, the mortgage lands were put to auction sale for arrear dues to the Zamindar and the latter purchased the same. In 1950 the Zamindar settled the lands with Defendant No. 1. He disputed the genuineness and validity of the alleged sale of a portion of the disputed lands by Defendant No. 2 in favour of Defendant No. 3.

(3.) THE title Court disbelieved the case of Defendant No. 1 that the Plaintiff No. 1 redeemed the mortgaged properties in 1941, that subsequently they were put to auction sale for arrears of rent and purchased by the ex -Proprietor of Khallikote and that the latter thereafter settled the lands with Defendant No. 1. He also disbelieved the case of Defendant No. 3 that the Plaintiff surrendered the lands in 1942 to Defendant No. 1 and that in a subsequent partition between Defendant No. 1 and his son Defendant t No. 2 the disputed properties fell to the share of the latter. He also disbelieved the alleged subsequent sale of the properties by Defendant No. 2 to Defendant No. 3 as no sale deed was produced in proof of the transaction. He believed the Plaintiffs ' case that in the year 1950, the Plaintiff No. 1 delivered possession of the lands to Defendant No. 1 under usufructuary mortgage which however was an oral transaction not evidenced by any document. In view of this finding, he held that Defendant No. 1 if at all had perfected his right to the suit properties only as a usufructuary mortgagee. None -the -less, following the principle enunciated in Purusottam Das and Anr. v. S.M. Desouza and Anr. : A.I.R. 1950 Ori 213 he held that the Plaintiff No. 1 would not be entitled to claim the benefit of Section 17 of the Orissa Money Lenders Act and would not also be entitled to claim any mesne profits. In the result he passed a preliminary decree directing payment of Rs. 200/ - towards the principal amount advanced and interest by Plaintiff No. 1 to Defendant No. 1 within three months from the date of the decree on payment of which Defendant No. 1 was directed to deliver back possession of the suit properties to the Plaintiff No. 1.