PITAMBAR SUNANI Vs. RUPA DOMB

JUDGEMENT

(1.) THE short question that falls for consideration in this Second Appeal is: If possession delivered pursuant to an oral mortgage can be recovered.

(2.) ONE Raghunath Domb was the owner of the property in dispute, 5.82 acres in extent. In 1953 for a sum of Rs. 120/ - he orally mortgaged Plot No. 138/2 of Khata No. 76 with Thirli Domb the father of Defendant No. 1. In 1958, he again mortgaged orally for a consideration of Rs. 550/ - the Plot Nos. 151/1 and 158/2 with Defendant No. 1. Alleging that the usufructs of the mortgages stood discharged on the expiry of the prescribed period under the provisions of the Orissa Money Lenders Act, the Plaintiff instituted the spit for recovery of possession and for mesne profits. The suit was resisted by the Defendants on the ground that the property was alienated by way of sale and not by way of mortgage. In any case the Defendants had acquired title by adverse possession. The trial Court negatived the plea of purchase advanced by the Defendants but dismissed the suit holding that the Plaintiff had lost title to the property on account of acquisition by the Defendants of title by adverse possession. In appeal by the Plaintiff, the lower appellate Court confirmed the finding that there was no sale by the Plaintiff 's father in favour of either Defendant No. 1 's father or Defendant No. 1. It further held that the Defendants having come to possess as the mortgagee they could not prescribe title by adverse possession and so holding decreed the suit. Defendant No. 1 has carried this Second Appeal.. Shri B. L. N. Swamy, the learned Counsel for the Appellant, has strenuously urged that a suit for redemption basing on oral mortgage was not maintainable. He relied on Kolathoor Variath and Anr. v. Pairaprakottoth Cheriya Kumhahammad Haji : A.I. R. 1974 S.C. 689 where it has been held that a suit for redemption of an oral mortgage is incompetent. A decision of the Full Bench of the Rangoon High Court in Ma Kyi v. Maung Thon and Anr., A.I.R. 1935 Rang 230 (F.B.) and that of the Rajasthan High Court in Hansia and Anr. v. Bakhtawarmal and Ors. : A.I.R. 1958 Raj 102, were followed and approved by the Supreme Court.

(3.) IN the Full Bench decision, Page, C.J. has held: