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2004 DIGILAW 71 (ORI)

KASINATH MOHANTY v. KUSUMA DEVI TRIPATHY

2004-01-30

P.K.MOHANTY

body2004
P. K. MOHANTY, J. ( 1 ) THE plaintiff-respondent filed a suit Title Suit No. 19 of 1981 for eviction and for recovery of arrear rent at the rate of Rs. 50/- per month. ( 2 ) THE case of the plaintiff in short was that the suit house originally belonged to mery Singh, wife of Laxman Rana Singh from whom he purchased the same on 22-7-1980 for a consideration of Rs. 3,000/- under a regd. Sale Deed and took possession of the house on the same day. The defendant-appellant approached her for giving the suit house on rent, took the house on monthly rent of Rs. 50/- on 1-10-1980 on the condition that he would pay the rent within first week of every month and he would vacate the same as and when the plaintiff would require. The defendant having not paid the rent in spite of repeated demand and registered notices, the suit. The defendant denied the ownership of the plaintiff over the suit house. However, admitted that the suit house originally belonged to Mery Sing and she mortgaged the house in his favour on 6-4-1980 by way of usufructuary mortgage and in token of the transaction she executed an unregistered stamped document on 6-4-1980 and delivered possession of the suit house pursuant thereto. The defendant claimed that he is in possession and occupation of the suit house since then. ( 3 ) ON the aforesaid pleadings, the learned Munsif framed five issues and decided all the issues in favour of the plaintiff and decreed the suit, recording the findings that the plaintiff is the owner of the house which he purchased from Mery Singh under a Regd. Sale deed on 22-7-1980. The mortgage in favour of defendant is not a genuine document. The defendant has taken the suit house from the plaintiff on monthly rent of Rs. 50/- with effect from 1-10-1980 and has defaulted in payment of rent. ( 4 ) IN appeal, the learned Subordinate judge confirmed the judgment and decree passed by the learned Munsif so far as evic- tion of the defendant-appellant is concerned. However, the decree for recovery of arrear rent was set aside and the defendant was directed to give up possession in favour of the plaintiff within two months. ( 4 ) IN appeal, the learned Subordinate judge confirmed the judgment and decree passed by the learned Munsif so far as evic- tion of the defendant-appellant is concerned. However, the decree for recovery of arrear rent was set aside and the defendant was directed to give up possession in favour of the plaintiff within two months. ( 5 ) THE learned Courts below found on the pleadings of the parties that the suit house originally belonged to one Mery Sing and that fact was admitted. The plaintiff claimed that he purchased the suit house by a Regd. Sale Deed and by virtue of such purchase, she is the owner of the house, whereas the defendants plea was that Mery sing alienated the property by way of a usufructuary mortgage in his favour and he is in possession and occupation thereof by virtue of that usufructuary mortgage. ( 6 ) THE plea of the defendant that he has got the suit land under usufructuary mort- gage to secure the principal money of Rs. 800/- in terms of the unregistered mortgage deed has been found to be void ab initio, the mortgage deed having not been regis- tered in view of Section 5 of the Transfer of property Act. Admittedly, the mortgage deed ext. A is an unregistered document, wherein the suit property has been valued at Rs. 800/ -. Section 59 of the Transfer of Property Act provides as under :"59. Mortgage when to be by assurance where the principal money secured is one hundred rupees or upwards, a mortgage other than a mortgage by deposit of title deeds can be effected only by a registered instrument signed by the mortgagor an at- tested by at least two witness. Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid or (except in the case of a simple mortgage) by delivery of the property. "in view of the clear provision of Section 59, the mortgage for a principal considera- tion of Rs. 800/- having been admitted the transaction cannot be by execution of a reg- istered document and as such, there is no escape from the conclusion that the trans- action is void ab initio and as such no ex- ception can be taken to the finding recorded by the Court-below. 800/- having been admitted the transaction cannot be by execution of a reg- istered document and as such, there is no escape from the conclusion that the trans- action is void ab initio and as such no ex- ception can be taken to the finding recorded by the Court-below. ( 7 ) THE plaintiff-respondent claimed her right on the basis of Ext. 1. a Registered Sale deed executed in her favour by Mery Sing. the admitted owner of the suit house, prior to the alleged two transactions. The allega- tion of the defendant that after the death of mery Singh, such a document is created has been disbelieved on scrutiny ot"the evidence on record, more specifically the evidence of p. W. 3, scribe of the document. P,w. 2. the attesting witness and on consideration of the endorsement on the back of the document that P. W. 1, the husband of plaintiff gave rs. 3000/- in presence of the attesting by then Registrar. The learned lower appellate court having found so, held that the plain- tiff is entitled to recover possession of the suit house from the defendant, who is unauthorisedly in possession ol the same. However, in absence of any document in support of the plea that the defendant had approached her and taken the house in question on a monthly rent of Rs. 50/- with effect from 1-10-1980, has been disbelieved. Ext. A, the purported mortgage deed, which has already been held to be invalid was ex- ecuted on 6-4-1980 before the plaintiff had purchased the suit house and. therefore, on the basis of the evidence of the D. Ws. the learned appellate Court came to the conclu- sion that the house in question was m oc- cupation of the defendant. , who was in pos- session of the same by virtue of the so-called mortgage. The relationship of landlord and tenant between the plaintiff and defendant has been disbelieved and consequently the claim of the plaintiff for realization of arrear rent has been rejected. ( 8 ) IN view of the concurrent finding of fact recorded by the learned Courts-below, on consideration of materials on record that the purported mortgage deed dated 6-4-1980 (Ext. 1) alleged to have been executed by mery Sing in favour of the defendant is not genuine and, therefore, not binding on the parties and that the sale deed. Ext. ( 8 ) IN view of the concurrent finding of fact recorded by the learned Courts-below, on consideration of materials on record that the purported mortgage deed dated 6-4-1980 (Ext. 1) alleged to have been executed by mery Sing in favour of the defendant is not genuine and, therefore, not binding on the parties and that the sale deed. Ext. 1 ex- ecuted by Mery Singh in favour of the plain- tiff was genuine and binding upon the par- ties, no substantial question of law having been raised as against the decisions in re- spect of these two issues, the ancillary is- sues with regard to the arrear rent also are not assailable in law in a second appeal. The cross-appeal filed by the plaintiff-respond- ent, therefore, is also to be rejected.