DHARAMESHWAR SARMA Vs. LAKHYADHAR BORGOHAIN

JUDGEMENT

(1.) THIS appeal arises out of a redemption suit which was decreed by the trial Court. Plaintiff was granted a decree for possession without payment of any money as the defendant (mortgagee) having remained in possession for over 12 years from the date of the mortgage was held not entitled to any mortgage money by reason of provisions contained in the Assam Moneylenders' (Amendment) Act 1943.

(2.) ON appeal, the learned Additional Subordinate Judge giving effect to the defendant's plea held that mortgaged land had been sold to the defendant mortgagee on 23rd December 1934 in consideration of the mortgage loan and one bigha of the land which the mortgagee had transferred to the mortgagor and that the mortgage had been extinguished by conduct of the parties. As a result of this finding he dismissed the plaintiff's suit. He has come to this Court on second appeal.

(3.) THE defence set up was that on plaintiff's failure to repay the loan of Rs. 500 within the stipulated period fixed in the mortgage deed, plaintiff sold the mortgaged land to the mortgagee in consideration of the mortgage debt and a bigha of defendant's land which was transferred to the plaintiff. Reliance was placed on certain copies of chitha, Exs. (b) and (c) and endorsements on these documents. These endorsements show that on the basis of plaintiff's admission to the effect that the mortgaged land had been sold to the defendant, land was mutated in the name of the mortgagee in possession. Since then defendant -respondent has remained in possession.