The main legal point established in the judgment is that a mortgagee can purchase the mortgage property or part thereof during the subsistence of the mortgage, and that the nature of the land must be determined from the overall evidence available, not solely from the entries in the records of right.

JUDGMENT :-

This is a plaintiff's appeal against the judgment and decree passed by the Subordinate Judge, Jagatsinghpur in T.A. No. 17 of 1982 confirming the judgment and decree of the Munsif, Jagatsinghpur in T.M.S. No. 44 of 1978.

2. Plaintiff's case in essence was that he is the owner of the suit land and he mortgaged it to the original defendant-Daitari Sahu on 25-7-1961 and delivered possession of the same. As per terms of the mortgage, defendant was to remain in possession of the suit land and enjoy the usufructs thereof, in lieu of interest and to re-deliver possession of the suit land to the plaintiff on payment of the principal loan amount of Rs. 100/-. The plaintiff pleaded that in the meantime amendment to Section 17 of the Orissa Money Lenders Act came into force in 1975 and in view of that amended provision, the mortgage was automatically discharged and the defendant was legally duty bound to re-deliver the suit land to the plaintiff, but the defendant neither delivered possession of the suit land nor returned the mortgage deed to him. So, he was constrained to file the suit for a direction to the defendant to re-deliver possession of the suit land to him. The defendant admitted the mortgage transaction and his possession since the year, 1961. He, however, pleaded that in the year 1962, he required a portion of the suit land for construction of a house and accordingly, purchased Ac.0.13 decimals of land out of Plot No. 1361 and Ac.0.03½ of land out of Plot No. 1363 from the plaintiff for consideration of Rs. 75/- by means of oral sale and amalgamated it with his own land and is residing thereon. He claimed that in view of such purchase and possession he has acquired title over that AC.0.16½ decimals of land.

2A. From the pleadings of the parties, learned trial Court framed as many as ten issues and on consideration of the evidence of the parties came to the conclusion that the defendant actually purchased the above said land for due consideration by means of oral sale and that such sale is not in contravention of Section 54 of Transfer of Property Act and Section 31 of Orissa Tenancy Act (in short, 'the O.T. Act'). Learned trial Court accordingly dismissed the suit. The plaintiff filed appeal, but the Appellate Court confirmed the judgment and decree of the trial Court. Hence this appeal.

3. The following substantial questions of law were formulated at the time of admission :

(i) Whether during the subsistence of usufructuary mortgage, the mortgagee can claim title over a part of the mortgage property on the basis of an oral sale?

However, learned counsel for the appellant in addition raised the following question of law :-

(ii) Whether the oral sale claimed by the defendant was void in view of the bar under Section 31 of the O.T. Act?

4. Mr. S. S. Rao, learned counsel for the appellant submits that during the subsistence of a usufructuary mortgage under a registered document, oral sale of part of the mortgage property is not legally permissible. He states that not only the oral sale as claimed by the defendant, is illegal, it is also improbable considering the paltry consideration amount. Mr. Rao further submitted that Section 31 of the O.T. Act bars sale of agricultural land under oral sale and the suit lands being agricultural land the oral sale was void and did not convey any title in favour of the defendant-respondents. In support of his contention, he prays to accept the settlement records of right filed in Misc. Case No. 355 of 2007 as additional evidence.

5. Learned counsel for the respondents, on the other hand, contended that there is no legal bar for a mortgagee to purchase the mortgage property or part thereof, even during subsistence of the mortgage. He argued that the Courts below from the evidence on record came to concurrent finding that the lands purchased by the defendant-respondents under oral sale are homestead lands and therefore, the bar provided under Section 31 of the O.T. Act does not apply to the