KAPILESWAR SAHOO Vs. RAINA CHANDRA SAHOO

JUDGEMENT

(1.) The plaintiff-appellant took a loan of Rs. 200/- from Rama Chandra Sahu, defendant No. 1-respondent and executed an unregistered and unstamped document of mortgage on March 16, 1982. The plaintiff also delivered possession of the suit properties to the said defendant No. 1. It was stipulated that the plaintiff would redeem the suit properties within three years from the date of mortgage. The plaintiff did not do that and the defendant No. 1 continued in possession. On May 12, 1980 the plaintiff filed an application under S.83 of the Transfer of Property Act which was registered as Misc. Case No. 12 of 1980 of the Court of Munsif, Narasingpur. The said miscellaneous case was dismissed on some technical ground. Thereafter in April, 1981 the plaintiff filed the present title suit being T.S. No. 4/81.

(2.) In the suit, the plaintiff has claimed that the mortgage stood discharged in terms of the provisions of S. 17 of the Orissa Money Lenders Act, 1939 (hereinafter referred to as the 'Act'). His further case is that under S. 17(2) of the Act defendant No. 1 was required to deliver possession of the suit property within three months from September 22, 1975. He has claimed that defendant No. 1 not having delivered possession he is entitled to mesne profits with interest thereon from December 22, 1975. He filed the suit for obtaining delivery of possession and the mesne profits.

(3.) Defendant No. 1 has contested the suit by filing a written statement. In the written statement defendant No. 1 admitted the mortgage. The further case of the defendants is that the plaintiff sold the suit properties to defendant No. 1 for a sum of Rs. 193.50 P. by an unregistered document and thereafter by a family partition in 1967 the suit properties were allotted to the share of the defendant No. 2. The defendants have claimed that defendant No. 2 being in possession of the suit properties for more than 12 years before the date of institution of the suit has perfected his right by way of adverse possession. They have also claimed that the suit is barred by limitation and that in view of the dismissal of the application under S. 83 of the Transfer of Property Act, the suit is hit by the principles of res judicata.