ARAKHITA BEHARA Vs. GANTA SWAIN

JUDGEMENT

(1.) This Second Appeal is directed against the Judgment passed by Learned District Judge, Ganjam -Boudh in Title Appeal No. 23 of 1980 confirming the Judgment and decree of Learned Sub -ordinate Judge, Aska passed in T.M.S. No. 43 of 1978.

(2.) THE original Respondent, Ganta Swain, as Plaintiff filed the above noted TMS asking for a decree directing the defendant to deliver possession of the suit land to the Plaintiff -Respondent on the latter's depositing Rs. 1350/ - and to render account of profit derived from the suit land and return the document dated 4.4.1967 to the Plaintiff after endorsing full satisfaction thereon. The case of the Plaintiff was that he borrowed Rs. 1350/ - from defendant and executed a mortgage deed dated 4.4.1967 in respect of the suit land and delivered possession of the same with the condition that on repayment of the loan amount on completion of one year the defendant would re -convey the suit land to the Plaintiff. It was alleged that on completion of one year the Plaintiff offered Rs. 1350/ - and requested the defendant to deliver possession of the suit land, but the defendant paid no heed for which he filed the suit seeking the aforesaid reliefs. The original defendant - Arakhit Behera in his written statement while traversing the plaint allegation pleaded inter alia that the Plaintiff actually sold the suit land to him for a consideration of Rs. 1350/ - and delivered possession of the property with an understanding that he would repurchase the said property one year after and executed a registered deed incorporating those terms. He further pleaded that after completion of one year the Plaintiff did not repay the amount and accordingly he (defendant) continued in possession over the suit land, but suddenly, in the year 1969 the Plaintiff attempted to trespass upon the suit land and take away the standing crops for which he had to initiate a proceeding under Section 145, Cr.P.C., but in that proceeding a compromise was effected between the parties on 2.12.1969. Wherein the Plaintiff surrendered all his rights over the suit property in favour of the defendant. Defendant further claimed that the suit land was thus recorded in the name of the defendant during the Survey and Settlement. The defendant pleaded that the profit from that suit land was negligible. He also challenged the maintainability of the suit on the ground of non -joinder of necessary parties and over valuation.

(3.) DURING the pendency of this appeal both the Appellant and Respondent died and their legal heirs, who are the present Appellants and Respondents were substituted.