JAYAGOPAL MUNDRA Vs. GULAB CHAND AGARWALLA
LAWS(ORI)-1973-12-1
HIGH COURT OF ORISSA
Decided on December 12,1973

JAYAGOPAL MUNDRA Appellant
VERSUS
GULAB CHAND AGARWALLA Respondents

JUDGEMENT

- (1.) THE disputed property is a house with vacant site in village Bagdihi in the Dist. of Sambalpur. Deceased Punamchand, father of deft. No. 3 and deceased bhagirathi (original defendant No. 4) were owners of the disputed property. They executed a usufructuary mortgage bond (Ext. 3) on 19-7-1911 in favour of the ancestors of the plaintiffs. In 1939 deceased Kashiram Marwari trespassed upon the disputed property. The predecessors-in-interest of the plaintiffs brought Title suit No. 40 of 1940 in the court of the Munsif, Sambalpur, for declaration of their title as mortgagees and for recovery of possession from Kashiram Marwari. The suit was decreed on 29-4-1941. The trial Court decree was confirmed in S. A. No. 13 of 1942 on 18-9-46. Defendants 3 and 4 were parties to that litigation. It was held in that suit that defendants 3 and 4 were the owners of the disputed property, Kashiram was a trespasser and the predecessors-in-inte-rest of the plaintiffs were the usufructuary mortgagees and they were given delivery of possession by eviction of Kashiram. In execution of the decree, delivery of possession of the property was given on 10-3-50. Ext. 1 is the writ of delivery of possession. and Exhibit 1/a is the peon's report. Ext. 2 dated 26-4-50 is the order of the Munsif recording the fact of delivery of possession. Case of the plaintiffs is that after delivery of possession, an arrangement was made between the plaintiffs and defendants 3 and 4 that the plaintiffs would become the owners of the disputed property and would continue in possession as before. In 58, defendants 1 and 2 trespassed on the disputed property. The suit was accordingly filed on 19-363. Defendants 3 and 4 fully supported the case of the plaintiffs. Defendants 1 and 2 did not dispute the fact of the previous litigation in which the predecessors-in-interest of the plaintiffs got a decree for recovery of possession as usufructuary mortgagees against Kashiram. They however, denied the factum of delivery of possession on 10-3-1950 and the possession of the plaintiffs subsequent thereto. Their case was that Kashiram Marwari was the owner of the property by being in continuous possession for the last 40 years till it was sold to them by Mithuram and Sama Bai, the nephew and widow of Kashiram respectively, by an unregistered sale deed (Ext. A) on 13-1-1960 for Rs. 1,500/whereafter they are in possession of the disputed property by reconstructing the rooms.
(2.) THE trial Court recorded the following findings: (i) Defendants 3 and 4 were the real owners of the disputed property and not Kashiram. (ii) Plaintiffs have title to the disputed property as mortgagees. (iii) Delivery of possession of the disputed property to the plaintiffs was given on 10-3-1950 through court in Execution Case No. 90/1949 by evicting Kashiram. (iv) Evidence of possession on both the sides was equally unsatisfactory. The principle that possession follows title, and the presumption of continuity of posession are applicable to this case and plaintiffs were found to be in possession within twelve years of the suit. It accordingly decreed the suit for recovery of possession against defendants 1 and 2. So far as defendants 3 and 4 were concerned, their right in the disputed property was left undecided.
(3.) THE learned Lower Appellate Court recorded the following findings: (i) Kashiram was a rank trespasser. (ii) The nephew and widow of Kashiram had no title to the disputed property. The unregistered sale deed (Ext. A) executed by them in favour of defendants 1 and 2 is void ab initio. Defendants 1 and 2 are rank trespassers. (iii) Right of the plaintiffs as mortgagees was extinguished after the expiry of fifteen years from the date of the mortgage (1911) under section 17 of the Orissa Money-lenders Act. (iv) The admission of defendants 3 and 4 that there was an arrangement whereby they relinquished their proprietary interest and right to possession in the disputed property in favour of the plaintiffs does not create any title in favour of the plaintiffs. (v) There was delivery of possession in favour of the plaintiffs on 10-350 but such delivery of possession was symbolical and not actual inasmuch as Kashiram Marwari was not physically evicted from the disputed house. Plaintiffs did not get physical possession of the property though delivery of possession was effected by the peon. (vi) Plaintiffs have failed to prove possession within twelve years of the suit. Article 64 of the new Limitation Act applies. Defendants 1 and 2 and their predecessors-in-interest were in possession of the disputed house for more than twelve years continuously. The principle that possession follows title does not apply to this case, on the conclusion that plaintiffs were not in possession within twelve years of the suit and defendants 1 and 2 and their predecessors-in-interest were in continuous possession for more than twelve years, the learned Subordinate Judge dismissed the plaintiffs' suit. ;


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