PRIYANATH SASMAL Vs. MRUTUNJOY PANI

JUDGEMENT

(1.) THE widow and the son of the original plaintiff are the appellants in this second appeal against the reversing judgment dated 26 -9 -1950 of Sri D.N. Das, District Judge of Mayurbhanj, setting aside the judgment and decree passed by Sri T. V. Rao Subordinate Judge of Balasore, arising out of a simple suit for redemption by the original plaintiff -mortgagor. Plaintiff's case is that the land in dispute originally belonged to one Bhagaban Panda who executed a registered Kabala (Ex. A) for a consideration of Rs. 2,000/ - on 16 -7 -1924 in favour of the plaintiff. Plaintiff being the owner in possession of the land executed a usufructuary mortgage bond (Ex. B) for Rs. 1,500/ - in favour of Luxminarayan Pani, the father of defendants 1 and 2 on 2 -6 -1928. The mortgaged property was put in possession of the mortgagee under the terms of the mortgage transaction that the usufruct be appropriated towards interest and the land can be delivered back any year in the month of Magh after the expiry of the due date on payment of the principal amount. Plaintiff averred that Luxminarayan and after his death the present defendants are in fact in terms of the bond in possession of the mortgaged property. According to the terms of the bond the mortgagor was to pay rent and, on his failure to pay if the mortgaged property is attached for arrears of rent, or put up for sale, the mortgagee was to pay the arrears amicably to the landlord or deposit the same in Court and release the property. The plaintiff further averred that the mortgagor being not a resident of the district where the lands are situate the mortgagee undertook to pay the rent and the mortgagee was in fact amicably paying all the money due on account of rent, but nevertheless in collusion with the landlord and his agent, the mortgagee practised fraud making a wilful default in the payment of arrears of rent on account of which the property was put to sale and was ultimately purchased by the deceased mortgagee Luxminarayan for a sum of Rs. 300/ - on 22 -9 -1936. The sals was confirmed on 4 -11 -1936 and the purchaser Laxminarayan took possession through Court on 21 -12 -1938. The present suit for redemption has been filed on 14 -11 -1947 for redeeming the mortgage.

(2.) THE defence is that even though the original plaintiff had executed the mortgage transaction (Ex. B) on 2 -6 -1928, possession was never delivered to the father of the defendants and the deceased plaintiff Priyanath remained in possession of the property. The mortgage dues under Ex. B were however discharged by payment of Rs. 1,860/ - on 20 -9 -1929. The father of the present defendants bona fide purchased the property in dispute in execution of a decree for rent on 22 -9 -1936 and there was no fraud or collusion as alleged by the plaintiff. Luxminarayan had never taken advantage of his position as a mortgagee which was extinct long ago. As the sale in execution of the rent decree is bona fide and a complete independent transaction, the plaintiff's suit for redemption is bound to fail.

(3.) BOTH the Courts below have concurrently found that in fact possession was delivered to the mortgagee on the basis of Ex. B. They have further found that the plea of discharge taken by the defendants is not true. An attempt was made to impeach these concurrent findings of fact in the second appeal, but on a perusal of the judgments of the Courts below we are of the view that the findings had been arrived at after a thorough discussion of the materials on record and are simply unimpeachable in second appeal. The trial Court on the above two findings came to the conclusion that the defendants had been in possession even after the purchase in execution of the decree for rent and were holding the property on behalf of the mortgagor and the right of redemption was still subsisting. He had placed reliance on the terms of the, mortgage transaction itself to find that the mortgagee was under an obligation to pay the arrears of rent and made a wilful default. He therefore thought that the questions of fraud and collusion etc., were not material for the purpose of determining the real controversy in the case. The lower appellate Court, however, in an unnecessarily lengthy judgment discussed at length as to the questions of fraud and collusion, and finding that there was no fraud or collusion as alleged by the plaintiff dismissed the plaintiff's suit for redemption.