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Bariko Bauri and anr. Vs. Sariamoni Pandiani - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 258 of 1967
Judge
Reported inAIR1972Ori33; 37(1971)CLT553
ActsCode of Civil Procedure (CPC) , 1908 - Sections 100; Transfer of Property Act, 1882 - Sections 60
AppellantBariko Bauri and anr.
RespondentSariamoni Pandiani
Appellant AdvocateS. Kar, Adv.
Respondent AdvocateR.C. Patnaik, Adv.
DispositionAppeal dismissed
Excerpt:
.....by operation of law the suit as framed for declaration of title and recovery of possession is maintainable; 4 should have been reiected as a fabricated document as the same has not been proved by any reliable evidence. 1. the mortgagee and therefore, on his failure to produce the certified copy was admitted as secondary evidence......a reversing judgment in a suit for a declaration of title to and recovery of possession of the suit lands.2. according to the plaintiff, the suit lands originally belonged to one madan satpatby who left two daughters kundan and ratan. after the death of madan and his widow tara. the two daughters inherited the properties. plaintiff and hiramoni are the two daughters of kundan. her father purchased the share of ratan. after her parent's death, she alone with her sister hiramoni succeeded to the properties. she purchased the share of hiramoni in the year 1943 and thus became the full owner of the suit properties. she mortgaged the suit properties to defendant no. 1 under a usufructuary mortgage in 1947 for a period of ten years and put him in possession. on expiry of the said period,.....
Judgment:

A. Misra, J.

1. Defendants are the appellants against a reversing judgment in a suit for a declaration of title to and recovery of possession of the suit lands.

2. According to the plaintiff, the suit lands originally belonged to one Madan Satpatby who left two daughters Kundan and Ratan. After the death of Madan and his widow Tara. the two daughters inherited the properties. Plaintiff and Hiramoni are the two daughters of Kundan. Her father purchased the share of Ratan. After her parent's death, she alone with her sister Hiramoni succeeded to the properties. She purchased the share of Hiramoni in the year 1943 and thus became the full owner of the suit properties. She mortgaged the suit properties to defendant No. 1 under a usufructuary mortgage in 1947 for a period of ten years and put him in possession. On expiry of the said period, the mortgage having been satisfied, she got possession of the properties in January. 1958-. While she was thus in possession, it is alleged that the defendants trespassed upon the suit lands on 16-3-64 and interfered with her possession. This led to a proceeding u/s. 145 Cr. P. C. which having terminated in favour of the defendants, the present suit was filed by her.

3. Defendants denied the title of the plaintiff to the suit lands, the alleged mortgage in 1947 and re-delivery of possession in 1958. According to them, the lands originally constituted baniar which they reclaimed and have been in possession since the time immemorial. Thev also challenged the maintainability of the suit as framed.

4. The trial court, on a consideration of the evidence, recorded the following findings; (1) Plaintiff is the owner of the suit lands; (2) defendant No. 1 came to possess the suit lands from 1947 as a mortgagee; (3) the re-deliverv of the properties to the plaintiff in 1958 is not true; (4) defendants cannot claim to have perfected their title by adverse possession; (5) the suit is not barred by limitation and (6) the suit is not maintainable as framed; because the plaintiff is entitled only to sue for redemption and not for declaration of title and recovery of possession. In view of the last finding, the suit was dismissed. On appeal by the plaintiff, the lower appellate court concurred in the first five findings, but differed from the trial court on the last finding and held that the mortgage having been satisfied by operation of law the suit as framed for declaration of title and recovery of possession is maintainable; Accordingly, it allowed, the appeal, reversed the judgment of the trial court and decreed the suit.

5. In this second appeal, learned counsel for appellants has urged the following two points; Firstly, it is contended by him that the courts below have , grossly erred in finding that plaintiff is the owner of the suit lands. Secondly, it is argued that even if it be held that plaintiff is the owner of the suit lands and had mortgaged the same in favour of defendant No. 1. a suit for redemption alone will lie and the suit as framed for declaration of title and recovery of possession is not maintainable.

6. In support of the first point, learned Counsel for appellants states that the record-of-rights (Ex. 1). the cist receipts (Ex. 2) and the security bond (Ex. 3) which have been relied upon as evidence in support of plaintiff's title being documents of recent origin of the years 1964 and 1965. the courts below should have ignored them. So far as Exs. 4 and 5 are concerned, it is urged that the latter purports to be a certified copy of the mortgage bond alleged to have been executed by the plaintiff in favour of defendant No. 1 in 1947 and the document as a mortgage has not been proved. It is further argued that Ex. 4 should have been reiected as a fabricated document as the same has not been proved by any reliable evidence.

7. Firstly, there is a concurrent finding of the courts below that plaintiff is the owner of the suit lands and the said finding being a finding of fact is not assailable in second appeal on a re-appreciation of the evidence. On merits, even if Exs. 1 to 3 are not taken into consideration being documents of recent origin. Exs. 4 and 5 afford ample evidence to show that plaintiff is the owner of the suit lands. Ex. 5 is a certified copy of a usufructuary mortgage bond alleged to have been executed by the plaintiff in favour of defendant No. 1 in 1947. The original of Ex. 5. as has been observed by the court below, must have remained in the custody of defendant No. 1. the mortgagee and therefore, on his failure to produce the certified copy was admitted as secondary evidence. Both the courts, on a consideration of the evidence, have believed that plaintiff executed the mortgage in favour of defendant No. 1 in 1947. No valid reason has been advanced before me to differ from this conclusion of the courts below.

So far as Ex. 4 is concerned, it is an agreement in original. P. W. 8 was examined to prove this agreement. Of course some comment was levelled asainst this document on the ground that there was no mention of it in the plaint, that it was not filed along with the other documents and that it being on a plain Paper, could have been manufactured subsequently. The lower appellate court has taken into consideration all these criticisms in weighing the evidence and come to the conclusion that Ex. 4 is genuine. Before me, it is contended that Ex. 4 is not proved. P. W. 8 was examined to prove Ex. 4. In his chief, he deposed that Ex. 4 was executed by defendant No. 1 in his presence after understanding the recitals and that he attested it. In cross-examination, however, he made certain statements saving that he does not remember after lapse of twentv years about the contents of the agreement or if the thumb impression was already there when he attested. He was declared hostile and cross-examined by learned counsel for the plaintiff. After the contents of Ex. 4 were read over to him, he admitted that the recitals are correct.

The lower appellate court has taken all these into consideration and expressed that there is no reason why a part of his evidence should not be believed, and accordingly, accepted his evidence regarding execution of Ex. 4. This being a matter relating to appreciation of evidence, it is not open in second appeal to re-assess the evidence and come to a different finding. Further, the existence of the registered mortgage bond and Ex. 4 executed almost simultaneously afforded convincing proof that a mortgage was executed by the plaintiff in favour of defendant No. 1. This having been proved, it follows that the courts below were risht in holding that plaintiff has title to the suit lands and she had mortgaged the same to defendant No. 1 under a usufructuary mortgage.

8. Coming to the second point, the contention advanced by learned Counsel for appellants has no force. Under Section 17 of the Orissa Money Lenders Act. any possessory mortgage shall unless discharged previously be deemed to stand discharged after expiration of fifteen years from the date of the mortgage and the mortgagee is liable to deliver to the mortgagor all documents and shall also put him in possession of the property. The mortgage in favour of defendant No. 1 being a possessory one under which the latter came into possession and the requi-site period as mentioned above having expired before filing of the suit, the mortgage stood discharged and the plaintiff is entitled to recover possession. The question of filing a suit for redemption after extinguishment of the mortgage by ope-ration of law cannot arise. Therefore, the suit as framed for declaration of title and recovery of possession is maintainable, as has been held by the court below.

9. In the result. I find no merit in this appeal which is accordingly dismissed with costs.


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