Delivery of possession in the case of sale of tangible immovable property to a usufructuary mortgagee for less than Rs. 100/- can be effected by oral sale accompanied by a declaration by the vendor that the vendee should keep the property as absolute owner.

B. K. PATRA, J.

( 1 ) DEFENDANTS Nos. 8 and 9 in the, suit are the appellants against a reversing judgment of the Subordinate Judge, Dhenkanal. The suit was filed for a declaration of the plaintiffs title to plot No. 192 measuring 1. 97 acres comprised in holding No. 68 in mouza Baligerang, and for recovery of possession of the same after a further declaration that the registered sale deed Ex. A dated 13-1-64 executed in respect of the land by defendants Nos. 1 to 4 in favour of defendants Nos. 8 and 9 are null and void. There was also a claim for recovery of mesne profits amounting to Rs. 50/ -.

( 2 ) THE disputed land admittedly belonged to defendant No. 1 and Kesab, father of defendants Nos. 2 to 7 who acquired the same on Nayabadi basis in the year 1933. The case of the plaintiff Rama-dev Pradhan who is respondent No. 1 in this appeal is that in the year 1947 defendant No. 1 borrowed a sum of Rs. 26/-from him and gave the land on usufrauc-tury mortgage to him and that in the year 1951 defendant No. 1 sold the land to him for Rs. 98/-and executed a sale deed in his favour which however was not registered. Out of the consideration amount of Rs. 98/- Rs. 72/- was paid in cash at the time of sale and the balance was adjusted towards the mortgage dues. Plaintiff's further case is that in the settlement proceedings that took place some time later defendant No. 1 admitted having sold the land to him and therefore a note was made in the record of rights that the plaintiff was in possession of the land as a purchaser. The plaintiff then applied for mutation of his name in respect of the disputed land. But the mutation officer rejected his prayer on the ground that the sale was not evidenced by a registered instrument. The plaintiff therefore requested defendant no. 1 to get the sale deed registered and handed over to him the unregistered deed but defendant No. 1 failed to turn up for registration and on the other hand defendants Nos. 1 to 4 executed and registered a sale deed in respect of the disputed land in favour of defendants Nos. 8 and 9. Being armed with the registered sale deed defendants Nos. 8 and 9 trespassed into the land on 25-1-64 and dispossessed the plaintiff therefrom and this gave the cause of action to the plaintiff to institute the suit.

( 3 ) EXCEPTING defendant No. 6, the other defendants contested the suit. Defendants nos. 1 to 5 and 7 in the written statement denied the plaintiffs' case that the land was mortgaged to him for Rupees 26/-and was subsequently sold to him for Rs. 98/ -. Their case is that being in need of funds to go to Assam defendant No. 1 took Rs. 16/- from the plaintiff and let out the disputed land to him on bhag. After defendant No. 1 returned from Assam he got back possession of the land from the plaintiff and was cultivating the same and that in the year 1964 the defendants nos. 1 to 7 sold the land to defendants Nos. 8 and 9 for Rs. 400/-under a registered deed of sale. Practically to the same effect it is also the written statement filed by defendants Nos. 8 and 9.

( 4 ) THE learned Munsif who tried the suit did not believe the plaintiff's case that the land was ever sold to him by defendant No. 1 or that he was in possession of the same from 1951 to 1964. He therefore held that the plaintiff failed to prove his title to the disputed land and relying on the defendant's case that the registered sale deed Ex. A was executed by defendants Nos. 1 to 4 in favour of defendants nos. 8 and 9, he found title with the latter and accordingly dismissed the suit.

( 5 ) ON appeal, the learned Subordinate Judge reversed all these findings. He noticed that in the written statement filed by defendants Nos. 1 to 5 and 7, they did not specifically deny the plaintiff's case regarding the execution of the unregistered sale deed by defendant No. 1 in favour of the plaintiff and the subsequent handing over by the plaintiff of the unregistered deed to defendant No. 1 for the purpose of registration. He b