A finding reached in a suit that was not maintainable must be taken as incompetent and not give rise to res judicata. The determination of possession rights under a mortgage should consider the provisions of the Evidence Act and T. P. Act.

JUDGMENT :- The plaintiffs are in Second Appeal against a confirming judgment of the learned Additional District Judge of Cuttack in a suit for foreclosure.

2. The plaintiffs claim that the defendants borrowed Rs. 500/- from their father who is now dead by executing a usufructuary mortgage bond (Ext. 1) on 3-7-1950, but the defendants actually did not put the mortgagee in possession. The plaintiffs filed T. M. S. No. 60 of 1959, but that suit was dismissed as being premature. Title Appeal No. 34 of 1961 carried against the decree of dismissal also did not bring any fruits. As the period stipulated under the mortgage has now expired, the suit for foreclosure has been filed because the defendants have failed to make any payment.

3. The defendants stated that the suit was barred by res judicata on account of the fact that in the previous suit there had been a determination that the plaintiffs had obtained possession of the property. They contended that the plaintiffs had appropriated much in excess of their dues and as such the defendants were entitled to discharge of the mortgage under the provisions of Section 17 of the Orissa Money Lenders Act. They were also entitled to the excess mesne profits.

4. The trial court came to find that the suit was barred by res judicata on account of the fact that on the earlier occasion it had been once determined between the parties that the possession had really been delivered to the mortgagee, and as the plaintiffs had been in possession over the statutory period they were not entitled to anything more.

5. Upon appeal the learned Additional District Judge reiterated the findings and dismissed the appeal.

6. The respondents were not represented during the hearing. Mr. Panda for the appellants claims that both the courts below had clearly gone wrong in holding that the suit was barred by res judicata. On the earlier occasion the suit was dismissed as premature. Once the suit was not maintainable on that account it was not open to the courts to embark upon an enquiry as to whether the plaintiff had been put into possession under the usufructuary mortgage. Any finding reached in such a suit that it was not maintainable must be taken as incompetent so as not to give rise to any element of res judicata. In support of such a proposition of his Mr. Panda relies upon a decision of their Lordships of the Judicial Committee in ILR 48 Cal 460 : (AIR 1922 PC 241), Midnapur Zamindari Co. Ltd. v. Naresh Narayan Roy, and a decision of this Court in ILR (1954) Cut 33 at p. 43 : (AIR 1954 Orissa 132), Batakrushna v. Kunja Behari. I think there is considerable force in the contention of Mr. Panda. Once the suit is held not to be competent, any finding reached therein must be taken to be without any legal basis and the same cannot be taken to have finally determined any question between the parties. The view adopted in the courts below on the plea of res judicata is, therefore, erroneous. The Courts below did not get into the merit of the matter being of the view that the dispute was concluded by res judicata.

7. Once res judicata fails, it has to be determined afresh as to whether the defendants really put the plaintiffs into possession under the mortgage. In view of the specific stand taken by the plaintiffs that their father the mortgagee was never put into possession it has to be determined on the evidence on record as to whether the plaintiffs were really in possession. The first proviso to Section 92 of the Evidence Act would cover the present case. The mortgagee was entitled to possession. Section 68 (d) of the T. P. Act protects the interest of the usufructuary mortgagee when he does not get possession. The first proviso to Section 92 of the Evidence Act would apply to such a case and the plaintiffs would be entitled to show that they have not been put into possession though under the contract of mortgage they were so entitled. The courts below did not approach the matter from the proper perspective and did n