DHIREN BAILUNG Vs. MUST. BHUTUKI AND OTHERS

JUDGEMENT

(1.) THIS second appeal by the plaintiff Dhiren Bailung raises some interesting questions of law bearing on the interpretation of Section 68 of the Evidence Act and Sections 3 and 59 of the Transfer of Property Act as also the interplay, if any, of the two sets of the sections.

(2.) DHIREN Bailung filed a suit on 31 -3 -1963 against Sashi Konwar and Paniram Konwar, besides others, claiming a decree for possession of 9 bighas and odd of land in his capacity as usufructuary mortgagee. He also claimed a money decree for a sum of Rs. 1,000/ - representing the damages suffered by him for deprivation of the possession of the mortgaged land, apart from another small sum of Rs. 127.43. It was alleged in the plaint that Sashi and Paniram, who are real brothers, had mortgaged the land with the plaintiff for a sum of Rs. 930/ - by a registered deed dated 12 -4 -1960. and that in terms of the mortgage agreement interest on the mortgage money was to balance the produce of the land of which possession was made over to him (the plaintiff) but the payment of land revenue was the liability of the mortgagors. The land revenue on the mortgaged land having not been paid by the two mortgagors, the Government put it to auction sale and it was purchased on 1 -2 -1961 by Joydhar Konwar, a cousin of the mortgagors and who was cited as defendant No. 3 in the suit. The plaintiff took steps for cancellation of the auction sale and succeeded in the attempt. The sale was set aside by the Revenue Board on plaintiff depositing a sum of Rs. 124.04 in the Treasury. However, in the meantime, the plaintiff alleged, the possession of the mortgaged land had been taken over by Joydhar Konwar who began to enjoy the land along with the two mortgagors. It is in such circumstances that the plaintiff was driven to file the suit culminating in this second appeal to vindicate his rights as a mortgagee.

(3.) Sashi Konwar did not put in appearance despite service and so was proceeded against ex parte. However, before the suit could be decided this Sashi died and his mother Bhutuki was brought on the record as his representative. Tirthanath and Debaram, another two brothers of the mortgagors, were cited as defendants Nos. 4 and 5 inasmuch as the mortgaged land was part of a bigger area which all of them had inherited on the death of their father Bhakat Konwar. Three separate written statements were filed one by Bhutuki, another by defendants Nos. 2, 4 and 5, and the third by defendant No. 3 Joydhar. In substance all the three written statements adopted identical defence, which was that the plaintiff was not entitled to possession of the land nor to the amount claimed for it was falsely alleged by him that the land had been mortgaged with him by Sashiram and Paniram or that the latter could part with possession of that land in his favour or that he had actually been put into possession of that land. It was further pleaded that Sashiram and Paniram had never been in exclusive possession of the land said to have been mortgaged by them.