SONUA KUMHAR Vs. CHAMTU PAHAN

JUDGEMENT

(1.) THIS is an appeal by the defendants in a suit for declaration of title to and recovery of possession of three plots of land appertaining to khata No. 288. The land is said to be 'bhuinhari' land. It appears that the ancestors of the plaintiffs borrowed Rs. 154.00 from the ancestors of the defendants under a simple bond. Later on, the debtors created an oral usufructuary mortgage in the year 1922 and put the defendants in possession of the lands in dispute. The plaintiffs' case is that they redeemed the mortgage find came in possession of the disputed land, but later on they were dispossessed. The defendants' case is that the story of redemption, as set up by the plaintiffs, is false and that they are coming in possession of the land as settlees from the ancestors of the plaintiffs. Both the courts below have held that the defendants' story of settlement is false, and that the plaintiffs have not redeemed nor did they ever come in possession of the disputed land. In view of this, both the courts below decreed the suit and ordered recovery of possession subject to the payment of Rs. 154.00 due under the simple bond.

(2.) THE contention of the appellants is that in view of the finding the decree passed by the Court of appeal below is wrong in law. In my view, the contention is well founded. THEre is a clear finding that there was an oral usufructuary mortgage which has not yet been repaid. This mortgage, under Section 59, T.P. Act is bad in law and as such the defendants' possession as mortgagees must be ignored. According to the findings, the plaintiffs never name into possession. THErefore, the suit for recovery of possession must fail. THE question that arises before us is fully covered by a decision of the Full Bench in 'Kameshwar Prasad v. Meghan Garain', AIR 1951 Pat 137. THE facts alleged in that case were similar to the facts alleged here and it was held in that case that in view of the findings of the lower Court that the plaintiff had not repaid the money due and that he had not obtained possession after the alleged redemption nor was he dispossessed on the dates alleged, the suit must wholly fail. THErefore, in view of this decision, I am clearly of the opinion that the suit must fail and the judgment of the court of appeal below reversed.THE appeal is accordingly allowed, the judgment of the court of appeal below set aside and the suit dismissed with costs throughout.