BHAGONA Vs. GUMAN

JUDGEMENT

(1.) 1. In the suit out of which this second appeal arises, the plaintiff-respondent had sued for correction of the settlement entry in respect of occupancy field No. 208/2, area 16.47, of mouza Bandhi in the Godarwara Tahsil of the Narsinghpur District and for possession of the said field and mesne profits thereof. The plaintiff's story was that Kodu, the father of defendants 1, 2 and 3 had in Sambat 1957, given the field, to the wife of defendant 4, who was then the malguzarin of the village, in satisfaction of a debt of Rs. 260, and that thereafter he got the field from the malguzarin on Rs. 20 rent after paying Rs. 260 as premium. It was alleged that the present malguzar, defendant 4, refused to accept the rent and fraudulently got the field recorded at the current settlement in the name of defendants 1 to 3.

(2.) DEFENDANT 4 did not put in appearance, but the remaining defendants contested the claim. Their defence was that in Sambat 1957 their father borrowed Rs. 260 from the then malguzarin and had placed the field in her possession on condition that whenever the debt was paid off the field would be returned to him. It was, therefore, contended that the malguzarin could not create the plaintiff as the tenant of the field, and that they having repaid the debt to defendant 4 recently, the latter had restored the field to them.

(3.) IT has been argued that the transaction between the appellant's father and malguzarin in the nature of a usufructuary mortgage was a perfectly valid one though it was not evidenced by a registered deed, and that the lower appellate Court's view to the contrary was wrong. It is difficult to appreciate this contention. The law requires usufructuary mortgages to be in a particular form and registration of such deeds is also compulsory, in the absence of which the transaction cannot be proved. I, therefore, agree with the learned District Judge in his finding that when the tenant left the holding in charge of the malguzarin with undefined rights and when the latter leased the land to the plaintiff in contravention of any rights which Kodu may have had, the possession of the malguzarin and the plaintiff was adverse and the right of Kodu and his sons to recover possession of the land was long barred by time. The appeal fails and is dismissed with all costs.