ABAS ALI KHAN Vs. SAHABUDDIN KHAN AND ANR.

JUDGEMENT

(1.) THIS is a Plaintiff's appeal against a decree of affirmance arising out of a suit for redemption of a mortgage with possession.

(2.) THE Plaintiff's case was that he mortgaged the suit land with the Defendants for Rs. 450/ - on 29 -1 -1971 and executed a usufructuary mortgage bond on that date. According, to the terms of the bond, the mortgagees would remain in possession of the property and enjoy the usufructs thereof in lieu of interest and that in any year before the end of the month of Chaitra the mortgagor would be entitled to redeem the mortgage on payment of principal amount without interest. On 30th and 31st March, 1973, the Plaintiff offered the principal sum of Rs. 450/ - to the Defendants, but they refused to accept the same. On 2 -4 -1973, he sent a pleader's notice by registered post requesting the Defendants to accept the money and allow him to redeem the mortgage, but they refused to accept the notice. Then the Plaintiff filed a petition under Section 83 of the Transfer of Property Act in the Court of the Munsif, Bhubaneswar and with the permission of the Court deposited the mortgage amount of Rs. 450/ - by Chalan No. 12 dated 18 -4 -1973. The Defendants appeared in Court and refused to accept the amount in deposit on a false allegation that they had purchased the property from the Plaintiff. The Plaintiff alleged that the Defendants have unlawfully retained possession of the property and they are liable to pay compensation for the same.

(3.) BOTH the Courts below dismissed the suit on the finding that the right of redemption had been extinguished by act of parties and the Plaintiff had no cause of action to bring the suit. The appellate Court also held that the Defendant No. 1 having continued to remain in possession of the land and having been ever ready and willing to purchase the land on the basis of the agreement dated 7 -4 -1972, he is entitled to the benefit of the doctrine of part performance as laid down in Section 53 -A of the Transfer of Property Act.