BHAGABAT MOHAPATRA AND ORS. Vs. KESHAB CHANDRA DAS AND ORS.

JUDGEMENT

(1.) THIS is an appeal by some of the Defendants against the appellate judgment of the Subordinate Judge of Balasore reversing the judgment of the Munsif of Balasore and decreeing the Plaintiffs suit against Defendants 3 to 20.

(2.) PLAINTIFFS 1, 2 and 3 and the father of Plaintiffs 4 and 5 were usufructuary mortgagees of the disputed property from one Sadhu Charan Mohanty who was the grandfather of Defendant 1 and father of Defendant 2. The mortgage bond is dated the 3rd March 1937. The Plaintiffs alleged that the mortgagees took possession of the disputed property and cultivated it till the 15th November, 1937. When they were dispossessed by Defendants 3 to 20 who claimed the property by virtue of a decree in the Rent Court and subsequent sale in execution of that decree. These Defendants were the co -sharer landlords in respect of the suit property. The Plaintiffs alleged that they were thus dispossessed by Defendants 3 to 20 and under the terms of the mortgage bond they (Plaintiffs) were entitled to realise the mortgage money with interest amounting to Rs. 260/ - from the Defendants. Hence they brought the present suit for a mortgage decree and sale of the property.

(3.) AT the time of the hearing of this appeal Mr. Roy on behalf of the Appellants urged that the interest of the cosharers -landlords Defendants 3 to 20 in the disputed property was joint and indivisible and that as Sulabha Mohapatra (Defendant No. 3) and Jagannath Mohapatra (Defendant No. 12) had died without proper substitution of their legal representatives, the appeal before the lower appellate court abate as against all the cosharer -landlords (Defendant Nos. 3 to 20). He urged that the lower appellate courts judgment against those Defendants should, therefore, be set aside. He also filed an affidavit, signed by one Bhagabat Mohapatra (who was Defendant no 4 and Appellant No. 1) stating that the interests of Sulabha and Jagannath in the disputed property was joint and indivisible with the interests of the other cosharer -landlords. Mr. M.S. Rao on the other hand filed counter -affidavits signed by one Madhusudan Das (Plaintiff No. 2) to the effect that the interests of Jagannath and Sulabha were severable interests.