CHANDU AGASTI Vs. CHANDRABALI KALAR

JUDGEMENT

(1.) DEFENDANTS 1 and 2 are the appellants against a confirming judgment. Plaintiff no. 1 and defendant No. 3 are brothers. Plaintiffs Nos. 2 and 3 are sons of plaintiff no. 1. The suit is for redemption on the allegation that the plaintiffs and defendant no. 3 executed a mortgage bond Ext. A dated 15-6-1935 for Rs. 200/- in favour of the father of defendants 1 and 2. The mortgagees were put in possession and under Section 17 of the Orissa Money Lenders Act the mortgage has been automatically discharged. There was an allegation in the plaint by way of amendment that defendant No. 3 transferred a portion of the suit property (It relates to item 2 of the schedule) in favour of defendant No. 4. The schedule given in the plaint contains two items not numbered. The dimension of the first item is 35 cubits x 20 cubits, and the dimension of the second item is 30 cubits x 20 cubits. For purpose of convenience these would be described in the judgment hereinafter as items 1 an 2.

(2.) DEFENDANTS 1 and 2 contested the suit and averred that Ext. A is a sale and not a mortgage. They further stated that item No. 1 of the plaint schedule was purchased by one Baidyanath Banerji in Court auction for which a sale certificate ex. C dated 15-8-36 was obtained. With regard to the purchase by defendant-4, they denied knowledge.

(3.) BOTH the Courts concurrently found that Ex. A is a mortgage and not a sale. Mr. Mohanty does not assail this finding particularly in view of the averment in the written statement that defdts. 1 and 2 admitted that the purchase by Baidyanath was subject to their mortgage.