BHIKARI NAIK Vs. BABAN SAHOO

JUDGEMENT

(1.) THIS is a plaintiffs appeal against the judgment and decree passed by the Subordinate Judge, Jagatsinghpur in T. A. No. 17 of 1982 confirming the judgment and decree of the Munsif, jagatsinghpur in T. M. S. No. 44 of 1978.

(2.) PLAINTIFFS case in essence was that he is the owner of the suit land and he mortgaged it to the original defendant-Daitari sahu on 25-7-1961 and delivered possession of the same. As per terms of the mortgage, defendant was to remain in possession of the suit land and enjoy the usufructs thereof, in lieu of interest and to re-deliver possession of the" suit land to the plaintiff on payment of the principal loan amount of rs. 100/ -. The plaintiff pleaded that in the meantime amendment to Section 17 of the orissa Money Lenders Act came into force in 1975 and in view of that amended provision, the mortgage was automatically discharged and the defendant was legally duty bound to re-deliver the suit land to the plaintiff, but the defendant neither delivered possession of the suit land nor returned the mortgage deed to him. So, he was constrained to file the suit for a direction to the defendant to re-deliver possession of the suit land to him. The defendant admitted the mortgage transaction and his possession since the year, 1961. He, however, pleaded that in the year 1962, he required a portion of the suit land for construction of a house and accordingly, purchased Ac. 0. 13 decimals of land out of Plot No. 1361 and ac. 0. 03 1/2 of land out of Plot No. 1363 from the plaintiff for consideration of Rs. 75/- by means of oral sale and amalgamated it with his own land and is residing thereon. He claimed that in view of such purchase and possession he has acquired title over that ac. O. 16 1/2 decimals of land. 2a. From the pleadings of the parties, learned trial Court framed as many as ten issues and on consideration of the evidence of the parties came to the conclusion that the defendant actually purchased the above said land for due consideration by means of oral sale and that such sale is not in contravention of Section 54 of Transfer of Property Act and Section 31 of Orissa Tenancy act (in short, 'the O. T. Act' ). Learned trial court accordingly dismissed the suit. The plaintiff filed appeal, but the Appellate Court confirmed the judgment and decree of the trial Court. Hence this appeal.

(3.) THE following substantial questions of law were formulated at the time of admission :