BISHNU BARIK Vs. SASHIBHUSAN TRIPATHY

JUDGEMENT

(1.) THIS is an appeal by the defendant against the judgment pasted by the learned 1st Additional District Judge, Berhampur in Title Appeal No. 12 of 1984 affirming the judgment passed by the learned Additional Subordinate Judge. Bethampur in T. M. S. No. 23 of 1981 (T. M. S. No. 50/78 B. S. J. C.) whereby the suit of the plaintiff for declaration that the usfructuery mortgage stands discharged and for recovery of possession of the suit land was decreed.

(2.) THE plaintiff's case is that he had mortgaged the suit land described in Schedules 'A' and 'B' of the plaint with the defendant under rigistered usufructuary mortgage deed dated 31 -3 -1967 for Rs 4500/ - and had put the defendants in possession on the condition that half of the yield of the land would be paid, towards interest and the plaintiff would be entitled to redemption after 3 years. It has been claimed by the plaintiff that the mortgage stood discharged on 31 -3 -1974 and accordingly, the plaintiff served a registered notice on the defendant but as the defendant did not restore possession and claimed title of the mortgaged properties, the plaintiff has been compelled to institute the suit.

(3.) THE trial Court framed eight issues and taking into consideration the evidence on record, came to hold that Ext. A is not a genuine document and the mortgage deed Ext. 6 is a valid document and the plaintiff has not executed any agreement to sell the suit land to the defendant. The trial Court also, recorded a finding that the defendant had not acquired any, till in respect, of the suit land under the provision Orrisa Estates Abolition Act and further concluded that the defendant was never a tenant in respect of the suit (and. L. The Court below also deal with the exact relief, :if any, the plaintiff ,was entitled to and on dession of the materials on record concluded that he was entitled to the mesne profits in respect of the suit properties from 22 -12 -1975JHI the date, of restoration .possession as the plaintiff was entitled to recover possession without any payment of mortgaged dues. On the basis of the aforesaid, conclusion the trial Court decreed the suit by declaring that the mortgage stood discharged and the plaintiff was entitled to recover possession of the suit properties from the defendant and the plaintiff was entitled to the lawful mesne profits the respect of the suit properties from the period ;cpmrnencing from 23 -12 -1975 till restoration of the possession. Being aggrieved by the aforesaid judgment the defendant carried an appeal forming the subject matter of title Appeal No. ,12/84.(T. A. 38/8i). GDC to the District Judge, Ganjam, Berhampur which was ultimately disposed of by the 1st Additional District Judge, Ganjam. The learned appellate Judge came to hold that Ext 6 is a deed of usufructry mortgage and is not a lease deed. He also affirmed the finding of the trial Judge with regards to the settlement, under the OEA Act and held that the defendant was not a tenant under the plaintiff. After affirming the findings of the learned trial Judge the appellate Court dismissed the appeal.