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2008 DIGILAW 359 (ORI)

Bhikari Naik v. Baban Sahoo

2008-04-29

A.K.PARICHHA

body2008
JUDGMENT :- This is a plaintiff's appeal against the judgment and decree passed by the Subordinate Judge, Jagatsinghpur in T.A. No. 17 of 1982 confirming the judgment and decree of the Munsif, Jagatsinghpur in T.M.S. No. 44 of 1978. 2. Plaintiff's case in essence was that he is the owner of the suit land and he mortgaged it to the original defendant-Daitari Sahu on 25-7-1961 and delivered possession of the same. As per terms of the mortgage, defendant was to remain in possession of the suit land and enjoy the usufructs thereof, in lieu of interest and to re-deliver possession of the suit land to the plaintiff on payment of the principal loan amount of Rs. 100/-. The plaintiff pleaded that in the meantime amendment to Section 17 of the Orissa Money Lenders Act came into force in 1975 and in view of that amended provision, the mortgage was automatically discharged and the defendant was legally duty bound to re-deliver the suit land to the plaintiff, but the defendant neither delivered possession of the suit land nor returned the mortgage deed to him. So, he was constrained to file the suit for a direction to the defendant to re-deliver possession of the suit land to him. The defendant admitted the mortgage transaction and his possession since the year, 1961. He, however, pleaded that in the year 1962, he required a portion of the suit land for construction of a house and accordingly, purchased Ac.0.13 decimals of land out of Plot No. 1361 and Ac.0.03½ of land out of Plot No. 1363 from the plaintiff for consideration of Rs. 75/- by means of oral sale and amalgamated it with his own land and is residing thereon. He claimed that in view of such purchase and possession he has acquired title over that AC.0.16½ decimals of land. 2A. From the pleadings of the parties, learned trial Court framed as many as ten issues and on consideration of the evidence of the parties came to the conclusion that the defendant actually purchased the above said land for due consideration by means of oral sale and that such sale is not in contravention of Section 54 of Transfer of Property Act and Section 31 of Orissa Tenancy Act (in short, 'the O.T. Act'). Learned trial Court accordingly dismissed the suit. Learned trial Court accordingly dismissed the suit. The plaintiff filed appeal, but the Appellate Court confirmed the judgment and decree of the trial Court. Hence this appeal. 3. The following substantial questions of law were formulated at the time of admission : (i) Whether during the subsistence of usufructuary mortgage, the mortgagee can claim title over a part of the mortgage property on the basis of an oral sale? However, learned counsel for the appellant in addition raised the following question of law :- (ii) Whether the oral sale claimed by the defendant was void in view of the bar under Section 31 of the O.T. Act? 4. Mr. S. S. Rao, learned counsel for the appellant submits that during the subsistence of a usufructuary mortgage under a registered document, oral sale of part of the mortgage property is not legally permissible. He states that not only the oral sale as claimed by the defendant, is illegal, it is also improbable considering the paltry consideration amount. Mr. Rao further submitted that Section 31 of the O.T. Act bars sale of agricultural land under oral sale and the suit lands being agricultural land the oral sale was void and did not convey any title in favour of the defendant-respondents. In support of his contention, he prays to accept the settlement records of right filed in Misc. Case No. 355 of 2007 as additional evidence. 5. Learned counsel for the respondents, on the other hand, contended that there is no legal bar for a mortgagee to purchase the mortgage property or part thereof, even during subsistence of the mortgage. He argued that the Courts below from the evidence on record came to concurrent finding that the lands purchased by the defendant-respondents under oral sale are homestead lands and therefore, the bar provided under Section 31 of the O.T. Act does not apply to the present case. He stated that the records of right which are sought by the appellant to be introduced as additional evidence cannot be entertained as that will amount to reopening of a factual issue and patching of the case of the plaintiff-appellant. 6. Admittedly, the suit land measuring Ac.0.28 decimals in six plots had been mortgaged by the plaintiff to the defendants with an understanding that the defendants would possess those lands, and enjoy usufruct thereof in lieu of interest. 6. Admittedly, the suit land measuring Ac.0.28 decimals in six plots had been mortgaged by the plaintiff to the defendants with an understanding that the defendants would possess those lands, and enjoy usufruct thereof in lieu of interest. The defendant late Daitari Sahu claimed that during subsistence of such mortgage, he purchased Ac.0.16½ decimals of land out of the suit land from the plaintiff in order to construct his residential house thereon. The defendant canvassed that the above said purchase was by means of oral sale for a consideration of Rs. 75/-. Considering the oral evidence of the parties and the Panchayat Faisala, Ext.A, and the conduct of the plaintiff, the Courts below concurrently held that there was in fact oral sale of Ac.0.16½, decimals of land and that after purchase the original defendant constructed a house thereon and was living there. It has been indicated in the judgments of the Courts below that the claim of the oral sale of D.W. 1 was amply corroborated by the evidence of D.Ws. 2 and 3, Ext. 1, and the admission of the plaintiff. In such a situation, the concurrent conclusion cannot be said to be based on no evidence or result of perverse approach. Therefore, there is hardly any scope for this Court to interfere in the findings of the Courts below in this regard. There is no legal bar contemplated any where that a mortgagee cannot purchase the mortgage properties or part thereof from the mortgagor. So, the findings of the Courts below that such oral sale can be effected during subsistence of the mortgage cannot be termed as illegal or improper. 7. Section 31 of the O.T. Act provides that every transfer of an occupancy holding of a person or share thereof whether sale, exchange or gift shall be made by a registered instrument except in the case of a sale in execution of a decree or a certificate signed under the Bihar and Orissa Public Demand Recovery Act, 1914. This Court analyzing the provisions of this Section in the case of Paramananda Das and another v. Sankar Rath, ILR 1950 Cuttack 322 observed that in case of agricultural land, Section 31 of the O.T. Act would override the provision of Section 54 of the T.P. Act. This Court analyzing the provisions of this Section in the case of Paramananda Das and another v. Sankar Rath, ILR 1950 Cuttack 322 observed that in case of agricultural land, Section 31 of the O.T. Act would override the provision of Section 54 of the T.P. Act. The wording of the Section and the observation indicate that the bar under Section 31 of the O.T. Act will not apply to non-agricultural lands. This issue also came up for consideration before the Courts below and the Courts below considering the evidence on record and subsequent conduct of the parties came to the conclusion that the lands purchased by the defendant under oral sale are not agricultural lands, but are homestead lands, and therefore, there was no legal bar for sale of those lands under oral sale. Learned counsel for the appellant now insists that the lands purchased under oral sale are agricultural lands and in support of his contention he wants to introduce the records of right of khatian Nos. 369, 1028, 567 and draft parcha No. 287 as additional evidence. First of all, the parties were aware of the objection in the written statement that the oral sale is invalid in view of Section 31 of the O.T. Act and led evidence on that score and the Courts below after perusing those evidence came to the concurrent finding that the lands purchased by the defendant under oral sale were not agricultural lands. Reasons were also given by the Courts below. In such situation accepting additional evidence at this stage will amount to patching of the weakness of the case of the plaintiff-appellant. That apart, the entries in the records of right are not conclusive evidence regarding the nature of the lands because over period of time nature of land keep changing and over the years large amount of agricultural lands have become homestead lands. So, the Courts must decide the nature of the land from the over all evidence available and not from the entries in the records of right. Moreover, the entries of the ROR sought to be introduced do not contain positive entries that the lands purchased by the defendant were/are not homestead lands. So, there is no scope or necessity at this stage to accept these documents as additional evidence. Moreover, the entries of the ROR sought to be introduced do not contain positive entries that the lands purchased by the defendant were/are not homestead lands. So, there is no scope or necessity at this stage to accept these documents as additional evidence. The concurrent findings of the Courts below in this regard being based on evidence and good reasoning do not call for interference. The lands purchased under oral sale being non-agricultural lands, the bar provided under Section 31 of the O.T. Act is not applicable. The substantial questions of law are thus answered against the appellant. The appeal is accordingly dismissed on contest, but without any cost. Appeal dismissed.