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Utsaba Pradhan and ors. Vs. Kandhuni Choudhury and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 11 of 1971
Judge
Reported inAIR1973Ori94
ActsCode of Civil Procedure (CPC) , 1908 - Order 47, Rule 1; Orissa Estates Abolition Act, 1952 - Sections 39
AppellantUtsaba Pradhan and ors.
RespondentKandhuni Choudhury and ors.
Appellant AdvocateH.G. Panda, Adv.
Respondent AdvocateBijon Ray, Adv. for ;R. Mohanty, Adv. and ;C. Patnaik, Adv.
Cases ReferredBanamali Mohapatra v. C. Venkayamma
Excerpt:
.....from him. the contention on behalf of appellants is that defendants nos 2 to 6 as well as plaintiff no. 11. the present review application has been filed by the unsuccessful appellants on the ground that there are errors of law and fact apparent on the face of the record and that they must be corrected in exercise of the power of review vested in the court. the learned munsif therefore seems to be perfectly correct in his finding that the plaintiffs have proved their title to the suit land which was a part of their choudhury inam'.again, rejecting the contention advanced on behalf of the defendants that the title to the suit land had passed on to defendant no. i find that the submissions are well founded and cannot be ignored. 7 has failed to prove his title to the disputed..........from sambari pradhan the paternal grandfather of defendant no. 1 and put him in possession of the suit land measuring 2.83 acres. under the terms of the bond, the loan was to carry interest of 1 per cent per month. the mortgagee was to remain in possession and appropriate the income. the stipulation was that accounts would be taken at the end of five years and if the amount due was then satisfied, the mortgagee was to redeliver the property with profits, if any or continue to remain in possession until satisfaction of the dues. the original mortgagee died in 1952 and his son having pre-deceased him. his grandson defendant no. 1 has been in possession of the mortgaged property since then. the mortgage loan stood completely extinguished under section 17 of the orissa money lenders act.....
Judgment:

Patra, J.

1. This is an application for review by the unsuccessful appellants whose second appeal (S. A. 130 of 1967) was dismissed by my learned brother A. Misra, J. who has since retired. Defendants 1 to 6 of the trial Court were the appellants in the second appeal and are petitioners before me. The case of the plaintiff-respondents Nos. 1 and 2 is as follows: The husband and father-in-law of plaintiff No. 1 borrowed Rs. 200 under a possessory mortgage bond dated 18-5-1919 from Sambari Pradhan the paternal grandfather of defendant No. 1 and put him in possession of the suit land measuring 2.83 acres. Under the terms of the bond, the loan was to carry interest of 1 per cent per month. The mortgagee was to remain in possession and appropriate the income. The stipulation was that accounts would be taken at the end of five years and if the amount due was then satisfied, the mortgagee was to redeliver the property with profits, if any or continue to remain in possession until satisfaction of the dues. The original mortgagee died in 1952 and his son having pre-deceased him. His grandson defendant No. 1 has been in possession of the mortgaged property since then. The mortgage loan stood completely extinguished under Section 17 of the Orissa Money Lenders Act (hereinafter referred to as the Act). The plaintiffs demanded delivery of possession of the property which however was not complied with. The defendants 2 to 6 being in possession of the mortgaged properties as alienees from the mortgagee had been impleaded as a parties. Defendant No. 7 was subsequently impleaded as a party because defendants 2 to 6 claimed title through him. On these allegations, the plaintiffs filed the suit for recovery of possession of the mortgaged property after a declaration that the mortgage loan was satisfied and the mortgage stood extinguished under Section 17 of the Act and for a preliminary decree of rendition of accounts by the mortgagee and the alienees from him.

2. The defenlants 1 to 6 denied the title of the plaintiffs and their ancestors to the suit property and the alleged mortgage in favour of defendant No. 1's grandfather in the year 1919. According to them, defendant No. 7 is the owner of the property in which the plaintiffs have no manner of interest and defendants 2 to 6 have been in possession of portions of the suit property as tenants under defendant No. 7. Defendant No. 7 while claiming that he was owner of the property also alternatively claimed to have acquired title to the suit property by adverse possession in case it was found that the plaintiffs possessed title at any time.

3. The trial Court dismissed the suit on the following findings; (1) Plaintiffs ancestors were the owners of the suit property: (2) the possessory mortgage by the husband and father-in-law of plaintiff No. 1 in favour of the grandfather of defendant No. 1 in the year 1919 is true; (3) Defendant No. 7 acquired title to the suit property from the plaintiffs in the year 1946 under a compromise decree; (4) alternatively, defendant No. 7 has perfected his title to the suit property by adverse possession; and (5) the suit is not maintainable in view of Section 39 of the Orissa Estates Abolition Act, 1951 (hereinafter referred to as the Abolition Act).

4. On appeal by the plaintiffs, the lower appellate Court allowed their appeal and decreed their suit on the following findings: (1) Section 39 of the Orissa Estates Abolition Act is no bar to the maintainability of the present suit; (2) Defendant No. 7 did not acquire any rights to the suit property under the compromise decree in the year 1946; (3) defendant No. 7 was not in possession and had not acquired title to the suit property by adverse possession; (4) plaintiffs have subsisting title to the suit property and (5) defendant's grandfather having come to possession of the suit property under a possessory mortgage which stood extinguished under Section 17 of the Orissa Money Lenders Act, the plaintiffs are entitled to recover possession and also to have a decree for rendition of accounts by the defendants.

5. Defendants 1 to 6 filed the sesond appeal in the High Court. During the hearing of the appeal, the following contentions were advanced by them: (1) The suit is not maintainable in view of Section 39 of the Orissa Estates Abolition Act; (2) the suit for redemption is not maintainable if the mortgage stands extinguished under Section 17 of the Ac; (3) in any view of the matter, defendant No. 7 having acquired title to the suit property under the compromise decree (Ext. D) passed on the basis of the compromise petition (Ext. C), the plaintiffs have no subsisting title and are not entitled to recover possession; (41 in the absence of a finding that defendants 2 to 6 are alienees from the mortgagee the plaintiffs are not entitled to recover the suit property from them; and (5) the suit is barred by limitation.

6. Misra. J. recorded his findings on these five contentions as follows:--

On point No 1, he held- 'There is no dispute that defendant No. 7 was the owner of the proprietary interest in the whole inam village of Sonepur in which the suit land is situate and the said intermediary interest has been abolished under the provisions of the Act (Orissa Estates Abolition Act) and consequently vested in the State. The contention on behalf of appellants is that defendants Nos 2 to 6 as well as plaintiff No. 1 have filed applications (Exts. 5 series and 11) in form 'H' before the Estates Abolition Collector and those applications are pending. Therefore, the jurisdiction of the Civil Court to entertain a suit for recovery of possession of the suit property is barred under Section 39 of the Act. This contention has been rejected by the lower appellate Court and rightly so. It is admitted by the learned Counsel for appellants before me that the applications in form 'H' relate to obtaining settlement of properties in Khas possession of the ex-intermediary on the date of vesting. It is neither party's case that the suit land formed part of the proprietary interest of the ex-intermediary. As a matter of fact, the concurrent finding which has not been assailed before me is that the ex-intermediary (defendant No. 7) possessed no interest in the suit land and the question of applying for settlement under Sections 6 and 7 of the Act cannot arise. It is contended by the learned Counsel for appellants that unless the property in question appertains to the Interests of the intermediary which has been abolished, the question of applications under Sections 6 and 7 would not arise and the bar under Section 39 will not be attracted. As such, this contention was not pressed by the learned counsel for appellants.'

7. On point No. 2. he held that the frame of the suit and the relief sought show that the plaintiffs are not seeking to enforce redemption of the mortgage. They have simply prayed for recovery of possession of the suit property on a declaration that the possessory mortgage stands extinguished and therefore the contention that the suit as framed is not maintainable is not correct.

8. On point No. 3 he considered and rejected the plea that defendant No. 7 had obtained title to the disputed property under the compromise decree (Ext. D). In any case, defendant No. 7 having not preferred an appeal against the decision negativing his title to the suit property that contention has no merit.

9. On point No. 4, he held that in view of the finding that the grandfather of defendant No. 1 had come into possession of the suit property as a possessory mortgagee and the further finding that defendant No. 7 had never acquired any title to the property and was never in possession of the same. It must be held that he could not have in-ducted defendants 2 to 6 as tenants and consequently it must follow that defendants 2 to 6 must have derived their possession from the mortgagee,

10. On point No. 5 relying on Sections 60 and 62 of the Transfer of Property Act and Section 61 of the new Limitation Act, he held that the period of limitation prescribed in Article 61 governs not only suits for redemption but also suits for recovery of possession permitted under Section 62 of the Transfer of Property Act and that even assuming that the usufructuary mortgage in the suit stood existinguished on coming into force of the Act, the suit to recover possession of the mortgaged property was within time.

In view of the findings recorded above, the second appeal was dismissed with costs.

11. The present review application has been filed by the unsuccessful appellants on the ground that there are errors of law and fact apparent on the face of the record and that they must be corrected in exercise of the power of review vested in the Court. The grounds set forth are the following:

(1) The suit land is a part of a Darmilla Inam granted to the predecessor of the plaintiffs. It was consequently not enfranchised by the Inam Commissioner and no title deed was issued. P. W. 1 has stated that the plaintiffs have no title deed in respect of the suit land and they do not claim any Jeraity right therein which means that the plaintiffs are intermediaries. The above fact would show that the suit land also vested in the State. Plaintiff No. 1, namely, the intermediary made an application (Ext. 11) under Sections 7 and 8-A of the Act claiming that the lands should be deemed to be settled with him by the State Government, and defendants 2 to 6 made applications Ext. 5 series for settlement as tenants under defendant No. 7 who according to them is the intermediary in respect of the land. When these applications are pending the jurisdiction of Civil Courts is ousted under Section 39 of the Act and the suit is not maintainable. (2) The prayer for rendition of accounts cannot be granted against the first defendant and much less against defendants 2 to 6. The attention of the Court in deciding the second appeal was by mistake of Counsel not invited to a Bench decision of this Court in Banamali Mohapatra v. C. Venkayamma, (ILR (1954) Cut 435) and an unreported decision of the then Chief Justice in Second Appeal No. 252 of 1959 (Orissa). They are both authorities for the proposition that if the suit is brought by the mortgagor after the mortgage stands discharged by virtue of Section 17 of the Act, the only reliefs open are those expressly recognised in Section 17, namely, return of the mortgage deed etc., but no rendition of accounts; (3) The plaintiffs case that defendants 2 to 6 are alienees from the mortgagee is not proved. The case of defendants 2 to 6 is that they were Inducted by defendant No. 7. If defendant No. 7 has no title, the possession of defendants 2 to 6 is that of trespassers. The finding of the learned Judge 'that defendants 2 to 6 must have derived their possession from the mortgagee' is only a surmise; (4) It Is further stated in the review application that this Court and the Supreme Court have held that once a mortgage Is discharged, the relationship of mortgagor and mortgagee ceases. The mortgage ceases to exist. The possession of the mortagee thereafter is that of trespasser. The suit for recovery of possession is barred unless it is filed within twelve years. Article 61 of the new Limitation Act presupposes the existence of a mortgage. Consequently the finding on the question of limitation recorded by the learned Judge is an error apparent on the face of the record.

12. Points 2, 3 and 4 urged in support of the review application do not appear to me to have any substance in them. The contention that the first appellate Court while passing a decree in favour of the plaintiffs for recovery of possession of the disputed property erred in ordering rendition of accounts was not even raised in the grounds of second appeal and much less argued before this Court. This point cannot therefore be permitted to be raised for the first time in the review application. The finding of A. Misra. J. that defendants 2 to 6 must have derived their possession from the mortgagee may be based on a surmise as contended by the learned Advocate for the petitioner and that finding may be wrong, but it is apparent from the judgment that the Court had applied its mind to that particular contention and after conscious reasoning has arrived at that conclusion. That conclusion may be wrong but merely because it is wrong it cannot be reviewed. That a decision is erroneous in law is no ground for ordering its review. Similarly, the learned Judge has given reasons in support of his conclusion that the suit is not barred by limitation. Even assuming that the decision on the point Is wrong as is contended by Mr. Panda appearing for the petitioners, it is no ground for ordering review.

13. Point No. 1. however, appears to stand on a different footing. In the plaint, the disputed property is described as Chowdhury Inam land situate in Sonepur village. We get it from paragraph 5 of the judgment of the trial Court that the plaintiff's contention in that Court was that-

'............... inside that whole mam village (of Sonepur) there are about 30 bharanams of land constituting Choudhuri Inam belonging to the plaintiff's ances-tors'.

The trial Court accepted this case of the plaintiffs adverting to this part of the case, the first appellate Court in his judgment has said:

'The learned Munsif therefore seems to be perfectly correct in his finding that the plaintiffs have proved their title to the suit land which was a part of their Choudhury inam'.

Again, rejecting the contention advanced on behalf of the defendants that the title to the suit land had passed on to defendant No. 7 under the compromise evidenced by Exts. C and D. the lower appellate Court has said:--

'Even assuming for the moment that ft is to be taken into consideration the reference to lands other than the subject-matter of that suit cannot have any reference to the suit because of the finding that it is a Choudhury inam land unconnected with the inam lands of the 7th defendant though it is situate within the whole inam village. I find that the submissions are well founded and cannot be Ignored. Therefore the compromise evidenced by Exts. C and D does not assist the 7th defendant in any way in proving his possession'.

The lower appellate Court finally concludes with the observation that-

'All these evidence would go to show that the suit lands never formed a part of the inam lands of defendant No. 7,'

It is an undisputed fact in the case that after the abolition of the estates, the plaintiffs made an application (Ext. II) under Section 8-A of the Abolition Ad before the Collector claiming rights under Section 7 thereof, and that the matter is still pending disposal by the Collector. It is also not disputed that defendants 2 to 6 have also filed applications before the Collector claiming tenancy rights in the land on the ground that they were admitted as tenants into the same by defendant No. 7. It is true that all the Courts have held that defendant No. 7 has failed to prove his title to the disputed property. Consequently, the claim of defendants 2 to 6 that they were admitted as tenants to the disputed land by defendant No. 7 may not be a valid one. It may be that the Collector while disposing of the application Ext. 11 made by the plaintiffs would duly take into consideration the claim made by defendants 2 to 6 in their applications Exts. 5 series and pass appropriate orders, but what is urged by Mr. Panda is that it is a matter exclusively within the jurisdiction of the Collector and that Section 39 of the Abolition Act ousts the jurisdiction of Civil Courts to decide such a dispute, his grievance is that in deciding the second appeal. Misra, J. overlooked the fact that the disputed land is a Choudhury Inam land belonging to the plaintiffs unconnected with the whole Inam village of Sonepur of which defendant No. 7 might have been the intermediary and that the learned Judge proceeded on the assumption that the disputed land formed a part and parcel of the whole Inam village and that this is an error which is apparent on the face of the record. I have quoted in extenso the finding of Misra, J. on this issue and it is apparent therefrom that he proceeded on the basis that the disputed land formed a part of the estate of which defendant No. 7 was the intermediary. To arrive at this conclusion he relied on the concurrent finding of the Courts below that the ex-intermediary (defendant No. 71 possessed no interest in the suit land. What he appears to have assumed from this concurrent finding is that although the disputed land formed a part of the estate of the intermediary defendant No. 7, the latter was not in khas possession of the same and consequently he could not have acquired any right under Section 7 of the Abolition Act But, as indicated above, the finding of the two Courts below is that the disputed land is a minor inam called Choudhury Inam belonging to the plaintiffs and it is an independent estate unconnected with the estate of defendant No. 7, although it may be that the plaintiffs' minor Inam was situate within the geographical limits of village Sonepur. Whether this error occurred by reason of a mistake or it crept in by reason of an oversight on the part of the Court it is none-the-less an error to detect which no elaborate arguments are necessary and is one apparent on the face of the record and thus affords a good ground for review, and I would accordingly proceed to review the judgment passed by my learned brother Misra. J. So reviewing I find in agreement with the concurrent findings of the Courts below that the disputed land formed a minor Inam called Choudhury Inam belonging to the plaintiffs, that the same vested in the State and that claiming rights therein under Section 7 of the Abolition Act, the plaintiffs have made an application Ext. 11 under Section 8-A thereof. That application is still pending disposal. Consequently, by reason of Section 39 of the Abolition Act, the jurisdiction of the Civil Courts is barred, and the plaintiffs have to work out their remedy in the Court of the Collector.

14. In the result, therefore. I would allow the application for review and after reviewing the judgment passed by A. Misra, J., allow the second appeal, set aside the decision passed by the learned Subordinate Judge and dismiss the suit with costs throughout.


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