MITRU THAPA Vs. MST GURUBARI GOUDANI
HIGH COURT OF ORISSA
MST. GURUBARI GOUDANI
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(1.) This is an appeal by defendants 1, 2 and 3 in a suit for recovery of possession on declaration that the said defendants are mere trespassers. The disputed lands amounting: to 3.33 acres of arable lands described in Schedule of the plaint belonged originally to one Bala Bagatia whose widow is defendant 4. Be died, sometime in 1931 leaving behind his widow (defendant 4), his three daughters (plaintiffs 1, 2. and 3) and his predeceased daughter's sons (defendants 1, 2 and 3). The disputed lands had been mortgaged with possession on 26th February 1924 by way of security for a loan of Rs. 190 to one Akula Sahu. In pursuance of the condition of mortgage, Akula was to enjoy the usufruct in lieu of the interest as they accrued. Akul con. tinued to remain in possession as mortgagee till 9nd January 1943 when it wag redeemed. Akul returned the mortgage bond with an endorsement of satisfaction of that debt. It has been the plaintiffs' case, which has been found to be true by the learned Court of Appeal below, that the loan was paid off by plaintiff 1 (Gurubari) at the request of defendant 4 (Tara Bagatiani) and possession was delivered to her. That she has been unlawfully dispossessed by defendants 1 to 3, who secured an invalid gift from defendant 4. Hence the suit for declaration that the gift was beyond the competence of defendant 4, void and inoperative as against the reversionary rights of the plaintiffs and, particularly, as against the right flowing to plaintiff 1 from her redeeming the mortgage at the request of defendant 4 and for recovery of possession from the said defendants. Besides, there is a claim for damages for such unlawful occupation resulting in deprivation of her crops raised by plaintiff 1 in the year 1943 and of possession in the years, following before the suit.
(2.) The defendants' reply is that they (defendants l to 3) paid up the mortgagee and redeemed the mortgage by raising a loan. They did so as the defendant 4 promised to give them the lauds by way of gift, they having been brought up from their infancy by her. That accordingly, defendant 4 gifted away the lands to them by an unregistered deed of gift and made over possession and that it was by trickery that the plaintiff l secured possession of the usufructuary mortgage deed and got certain endorsements forged on its reverse.
(3.) For the purpose of Second Appeal, the following findings are incontrovertible and conclusive :
(i) That at the request of defendant 4, who was unable to redeem the mortgage, the plaintiff 1 paid up the mortgage money in the presence of defendant 4 and the punchas of the village and the mortgagee, on receiving the money in full discharge of the mortgage, recorded an endorsement to that effect and made over the deed to the plaintiff 1; (ii) That the plaintiff l was given possession of the lands bub was later dispossessed forcibly by defendants 1 to 3 ; (iii) That the unregistered dead of gift executed by defendant 4 in favour of defendants 1 to 8 was void and inoperative, and the donees under the deed were never given possession under it which they secured by force.;
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