LAL MOHAN MAHANTY Vs. ONKAR MALL MARWARI

JUDGEMENT

(1.) This is a second appeal by the plaintiffs from a judgment of reversal passed by the learned District Judge of Cuttack. The facts out of which the appeal has arisen are shortly stated below. Plaintiffs 1 and 2 are the appellants before me. They belong to the same family, plaintiff 1 being the nephew of plaintiff 2. One Raghunath was the grandfather of plaintiff 1. Defendant 2 Mani Dei, is the widow of Raghunath being his second wife. Touzi No. 616 and other touzis of mahal Mrutanga, etc., belonged to the plaintiffs and some other co-sharers. Plaintiff 1 lost his father when he was a minor. On death of the father of plaintiff 1, Raghunath, the grandfather of plaintiff 1, was in possession. On the death of Raghunath, his interest in the said touzis devolved on plaintiff 1, who applied for mutation of his name in the revenue records. On this application a mutation case, No. 901/902 of 1926-27, was started. Defendant 2, Mani Dei, objected to the mutation of the plaintiff's name. There was, however, a compromise, the terms of which are mentioned in a document which is Ex. 3 in the record. By the compromise it was settled that Mani Dei would get about 10 acres of nijchas lands, appertaining to touzi Nos. 616 and 619, for the maintenance of herself and her daughter till her lifetime.

(2.) The compromise petition then stated as follows: The objector (Mani Dei) will hold and enjoy the said properties during her lifetime, but the objector will not be competent to transfer the immovable property which is given to her.

(3.) It was further agreed that the name of plaintiff 1 would be recorded in the revenue records in respect of the property. Plaintiff 1 further agreed to bear the expenses of the marriage of the daughter of Mani Dei. Subsequent to the above compromise, there was a partition amongst the plaintiffs and their cosharers of the mahal. About 5 acres out of the land given to Mani Dei for maintenance were allotted to the share of the plaintiffs, the rest having gone to the share of other, cosharers. These 5 acres and odd have been described in Schedule ga of the plaint. There was again a partition as between plaintiff 1 and plaintiff 2 in respect of these 5 acres and odd, 3"08 acres described in Schedule gha of the plaint falling to the share of plaintiff 1 and 1 96 acres falling to the share of plaintiff 2. I had forgotten to mention before that the compromise petition was dated 12 March 1927. In 1936 Mani Dei executed a simple mortgage in favour of defendant 1, Onkar Mall Marwari, for a sum of Rs. 100 only, in respect of the said 5 acres and odd land. On the foot of this mortgage Onkar Mall Marwari obtained a decree against Mani Dei, and in execution thereof he purchased the said lands on 20th February 1940. The case of the plaintiffs was that the widow had only a personal right of enjoyment of the usufruct of the lands and that she had no power of alienation. The plaintiffs, therefore, asked for a declaration that Mani Dei had no right to transfer the land and that the sale of the land in execution of the mortgage decree be set aside. They further prayed for a permanent injunction against defendant 1, restraining him from taking possession of the disputed land.