BIMBADHAR ROUT Vs. KUNA SENAPATI

JUDGEMENT

(1.) The sale point for consideration is whether the two sale-deeds executed by the plaintiff in favour of defendant No. 1 conveyed an absolute title in her favour or the same was executed only as a security for the loans incurred by the plaintiff.

(2.) Plaintiff's case is as follows: - The defendants are his distant relations and he had his confidence in them. Defendant No. 2 was serving in Calcutta and on retirement came to the village in 1970 and carried on money lending business under a licence. Even though money landing business was prohibited under the Orissa Money Lenders Act (for short, the 'Act'), yet defendant No. 2 carried on money landing business illegally. To cammouflage his transactions, he used to accept sale-deeds from the parties as securities for the loans advanced by him with an agreement that on repayment of the loan, he would reconvey the land to the loanee by way of sale. The plaintiff borrowed money, on one occasion Rs. 1200/- and on the other Rs. 4,000/-, and executed two sale-deeds on 10-4-1975 and 1-3-1976 respectively in favour of defendant No. 1, wife of defendant No. 2. At the first instance he repaid the loan of Rs. 2,000/-. When the plaintiff approached defendants with the balance amount was demanded reconveyance of the land, the defendants refused to execute any sale-deed by giving out that it was not a mortgage but a sale out and out that he had acquired title to the property. The plaintiff filed the suit for confirmation of his possession and for cancellation of the sale-deeds, while the lower Court decreed the plaintiff's suit, the lower appellate Court reversed the finding and, therefore, the plaintiff is in second appeal before this Court.

(3.) Mr. G. N. Mohapatra, learned counsel for the plaintiff-appellant, strenuously urged that the approach of the lower appellate Court to the case on the basis of the evidence on record was wholly erroneous and based on reasoning against the settled proposition of law and proved facts in the case. The learned counsel supported the reasonings and the findings of the lower Court. Mr. S. Mishra, learned counsel for the defendants-respondents, mainly stressed two points while supporting the judgment of the lower appellate Court, i.e. (i) having executed the sale-deed under which title passed to the defendants, the plaintiff should not have been permitted to adduce parole evidence that the transactions were not sales, but were only in the form of security for the money advanced since, according to him, this is clearly hit under the provisions of S. 92 of the Evidence Act; and (ii) there is no justifiable reasons to disturb the finding of the lower appellate Court which is based on the evidence on record and this Court should not go for a further appreciation of evidence duly discussed by the lower appellate Court. Let us examine the two contentions so raised by Mr. Mishra.