DAYALU NARAYAN SWAMY Vs. KANIKA RAMASWAMY DORA

JUDGEMENT

(1.) The disputed land belonged to one Ram Chandra Dora. His son Balaram Dora executed a registered usufructuary mortgage bond (Ext. A) in favour of the father of defendants 1 to 3 and 5 and grandfather of defendant No. 4 on 4-11916. The widow of Balaram Dora executed an unregistered agreement for sale (Exit. 2) on 21-1-1965 in favour of the plaintiff and thereafter she executed the registered deed of sale (Ext. 1) on 14-5-1965 for Rs. 500/-. On the basis of the title under the registered sale deed the plaintiff filed the suit for permanent injunction. The contesting defendants assailed the suit alleging that the vendor was not the wife of Balaram Dora and that the defendants purchased the disputed property by an oral sale about 8 months after the mortgage. All the courts have concurrently rejected the defence story and have held that the Narayan Swamy vs. Kanika Ramaswamy Dora and Ors. (11.07.1975 - ORIHC) Page 2 of 3 vendor is the wife of Balaram Dora and transmitted a valid title in favour of the plaintiff by the registered sale deed, They also discarded the story of oral sale. The trial and the lower appellate courts decreed the plaintiffs suit for permanent injunction. In second appeal our learned brother S. K. Ray, J held that as the defendants were in actual possession of the disputed property a suit for permanent injunction does not lie. He accordingly allowed the second appeal after reversing the judgments of the courts below. This A. H. O. has been filed by the plaintiff against the judgment of the learned single Judge.

(2.) The only contention urged by Mr. Pal is that after the usufructuary mortgage was extinguished by operation of law under Section 17 of the Orissa Money Lenders Act, the defendants were in permissive possesssion and a suit for permanent injunction lies against the defendants who were not in posssession in their own right, title and interest. The contention is wholly misconceived and is concluded by a Full Bench decision of this Court in AIR 1974 Ori 173 (Jayagopal v. Gulab Chand). In paragraph 16 their Lordships made the following observation:--

(3.) In this appeal the plaintiff has filed an application for amendment of the plaint. The following are the essential features of the amendment sought:--