BHIKARI NUNIA Vs. RAM NARAYAN CHOUHAN

JUDGEMENT

(1.) Heard Mr. SP Choudhury, learned counsel appearing on behalf of the appellants. None appears on behalf of the respondent.

(2.) The present appellants are the defendants in Title Suit No. 91/1992 filed in the court of learned Assistant District Judge No. 1 at Silchar. The plaintiff/ respondent filed the suit for declaration and injunction. It is the case of the plaintiff/ respondent that the defendant No. 1, Gopi Hazam, the proforma respondent No. 2 in the present appeal, on 4.4.1985 vide registered deed No. 1383 mortgaged some land measuring 4B 17K 8Ch covered by various Dag numbers of second RS patta No. 136, 137 and 138 described in Schedule 1 of the plaint after receiving Rs. 10,000/- from the plaintiff/respondent. The possession was handed over to the plaintiff/ respondent by the said defendant/ proforma respondent No. 2 with a condition that the plaintiff/ respondent is to retain possession of the said land for 10 years and to enjoy the usufructs thereon. Similarly, the deceased proforma respondent No. 3 in the present appeal also vide registered deed No.1382 dated 04.04.1985 mortgaged 4B 17K 8Ch of land covered by various Dag numbers under Second R.S. patta Nos. 136, 137 and 138 described in Schedule 2 of the plaint after receiving Rs. 10,000/- and handed over possession to the plaintiff/ respondent on the same condition that the plaintiff/ respondent is to retain possession for 10 years and to enjoy the usufructs thereon. On delivery of possession, plaintiff/ respondent had been enjoying the possession over the suit land by way of cultivation. On the last part of May, 1992, it came to the knowledge of the plaintiff/ respondent that a sale agreement dated 10.04.1986 was executed by the said defendants/ proforma respondents No. 2 and 3 in favour of the present defendants/ appellants for selling Schedule 1 and 2 land by way of a registered agreement for sale bearing No. 990 dated 10.04.1986. The said defendants/ appellants were trying to evict the plaintiff/ respondent from the suit land in clear violation of the condition stipulated in the mortgage deeds both dated 04.04.1985. The defendants/ appellants were also trying to procure sale permission from the concerned authority. The plaintiff/ respondent is entitled to remain in possession of the suit land and to enjoy the benefit of the same until the defendants/ proforma respondents No. 2 and 3 initiated legal proceeding against him as per terms and conditions of mortgage deeds. Therefore, the plaintiff/ respondent preferred the said suit with the following prayers:-

(3.) The present defendants/ appellants filed their written statement denying the pleadings in the plaint that they were trying to dispossess the plaintiff/ respondent from the suit land. It is pleaded in the written statement that the proforma respondents No. 2, 3 and 4 executed an agreement for sale in favour of one Ramdulal Nunia and the present defendants/ appellants on receipt of part consideration money of Rs. 30,000/- promising to sell the suit land on receipt of the balance consideration money of Rs. 19,000/- within the year 1993. It was further pleaded that the said Rs. 19,000/- was kept for redemption of the mortgage and the proforma respondents No. 2 and 3 entered into the sale agreement with a promise that they would redeem mortgage and execute the sale deed in favour of the present defendants/ appellants. The said proforma respondents in the present appeal delayed execution of the said sale deed by taking the balance consideration money as per sale agreement dated 10.04.1986 and a suit was filed against them by the defendants/ appellants which was pending. While the plaintiff/ respondent found that the said proforma respondents No. 2 to 4 were going to sell the suit land to the defendants/ appellants on redemption of the mortgage within a short period of time, the plaintiff/ respondent filed the present suit hurriedly in order to create hindrance in selling the suit land to the defendants/ appellants. Accordingly, they prayed for dismissal of the suit.