Sheo Shankar Bharti v. Kusami Devi — 1986 DIGILAW 182 (PAT)

JUDGMENT : S. ALI Ahmad, J.–This appeal by the plaintiffs arises out of a suit for redemption with respect to half of the lands covered by the mortgage dated 16.10.1933 and for recovery of possession from defendant-first party or against defendant second or third party in case they are found to be in possession. The suit was dismissed by the trial court. The appeal also failed. Thereafter, this second appeal has been filed in this Court. 2. Shortly stated, the case of the plaintiff-appellants is that they are purchasers of equity of redemption from Ugari Choudhary and Kamal Choudhary in respect of 3/4th share in the land covered by the mortgage. In ORDER :to appreciate the case of the plaintiffs some facts are necessary. They are as follows : – The lands in question belonged to Ugri Choudhary to the extent of half and to Gango Choudhary and Kamal Choudhary to the extent of remaining half. It is said that on 16.10.1933 Ugri Choudhary and Gango Choudhary for himself and for his younger brother Kamal Choudhary executed a mortgage deed with respect to Schedule II land measuring 1 bigha 9 katha and 15 dhurs for Rs. 400/- in favour of one Bhagalu Choudhary, father of defendant nos. 1, 2 and 3. The aforesaid Bhagalu Choudhary came in possession as mortgagee. Although the due date was 30th Baisakh, 1343 Fasali (sometime in 1936) but the lands were not redeemed. On the other hand, Gango Choudhary for self and for Kamal Choudhary executed a sale deed dated 9.2.1938 with respect to their share for equity of redemption in favour of defendant no. 1. The extent of their share was 14 kathas 171/2 dhurs. Ugri Choudhary and Kamal Choudhary also sold their equity of redemption in favour of the plaintiffs by a sale deed dated 5.5.1939. Thereafter on 8.5.1943 a deposit under section 83 of the Transfer of Property Act was made, a miscellaneous case was started. In that Misc. case, the objection raised by the defendant that Kamal Choudhary's share had already been transferred under the sale deed dated 9.2.1938 was upheld and a decree for redemption was passed in respect of only half share. Thereafter on 8.5.1943 a deposit under section 83 of the Transfer of Property Act was made, a miscellaneous case was started. In that Misc. case, the objection raised by the defendant that Kamal Choudhary's share had already been transferred under the sale deed dated 9.2.1938 was upheld and a decree for redemption was passed in respect of only half share. It is said that after this decree the plaintiffs came in possession, but they were dispossessed on 19.5.1944 under section 171 of the Bihar Tenancy Act by the defendant-second party in an auction sale held in execution of a rent decree. The plaintiffs thereafter filed Title Suit No.269/104 of 1945/47 for possession against the defendant-first and the defendant-second party. That suit came upto this Court in Second Appeal No. 653 of 1949. The appeal was dismissed with certain findings and direction. It was held that the plaintiffs had interest only to the extent of half and that the defendant-second party were in possession under section 171 of the Bihar Tenancy Act as statutory mortgagees. But the suit was dismissed because, according to this Court, the defendant-first party were still mortgagees and the plaintiffs could recover possession only if a suit for redemption was filed. Thereafter this suit was filed in the year 1968. The claim for redemption was contested by the defendant-first party alone. Their case, inter alia, was that the defendant-second party was in possession as a mortgagee under section 171 of the Bihar Tenancy Act with respect to 5 kathas of Plot no. 439 from east, 5 kathas 3 dhurs of Plot no. 1466 from west and 4 kathas 141/2 dhurs of Plot no. 1467 from east which, in all, measured 14 kathas 171/2 dhurs, i. e. exactly half area of the land that was originally mortgaged on 16.10.1933. The name of the defendant-second party, according to them, was mutated. It was further said that the plaintiffs cannot get a decree for redemption unless the debt with due interest thereto under section 171 of the Bihar Tenancy Act was discharged. 3. The courts below came to the conclusion that the lands were in possession of the defendant-second party with which the defendant-first party had no concern. According to them, since the defendant-second party were pleaded as proforma defendant, therefore, no relief as against them could be granted. 3. The courts below came to the conclusion that the lands were in possession of the defendant-second party with which the defendant-first party had no concern. According to them, since the defendant-second party were pleaded as proforma defendant, therefore, no relief as against them could be granted. It was also held that although the plaintiffs under the sale deed dated 5.5.1939 had acquired 3/4th share in equity of redemption but only half of the interest passed to the plaintiffs as the share of Kamal Choudhary had already been sold in favour of defendant no. 1. 4. Mr. Krishna Prakash Sinha, learned counsel appearing on behalf of the appellants did not challenge the fact that Kamal Choudhary's share had already been sold to defendant no. 1. He rightly said that the plaintiffs were interested in redemption of only 14 Kathas 171/2 dhurs of land which, according to the defendant-first party, is in possession of the defendant-second party and which case has been accepted by the courts. He says that the courts below erred in law in thinking that the defendant-second party were only proforma defendants. According to learned counsel, the prayer in the plaint was that a decree for recovery of possession may be given against the defendant-first party or against those who were found to be in its possession. According to learned counsel, the word 'those' referred to defendant-second party and the defendant-third party. Therefore, learned counsel says that relief in contingent manner was prayed for against the defendant-second party also. According to him, therefore, the courts below erred in dismissing the suit. Mr. Indu Shekhar Pd. Sinha, on the other hand, contended that the members of the defendant-second party were described as proforma defendants in the plaint. Learned counsel in that connection also said that according to the plaint itself the defendant-second party were pleaded as the defendants to avoid future complications. He says that it is established principle of law that no decree can be passed against the proforma defendants. There can be no doubt with respect to the proposition advanced by Mr. Sinha, but only this proposition has no application to the facts of this case. He says that it is established principle of law that no decree can be passed against the proforma defendants. There can be no doubt with respect to the proposition advanced by Mr. Sinha, but only this proposition has no application to the facts of this case. In the plaint it was specically said that the defendant-second party were statutory mortgagees and in the prayer portion it was said that a decree for recovery of possession be passed against the defendant-first party or against one who is found to be in possession. This clearly meant that in case it was held that the defendant-second party were in possession then a decree for recovery of possession against them should also be passed. The courts below in my view, therefore, erred in dismissing the suit on that ground. 5. Mr. Sinha also urged that the defendant-second party were statutory mortgagees under section 171 of the Bihar Tenancy Act. He says that until the debt along with interest thereon is satisfied in the manner prescribed under section 171 of the Act, no decree for redemption can be passed. Learned counsel for the appellants, on the other hand, referred to the case of Mostt. Bibi Ganshil Fatma v. Badri Singh (A.I.R. 1952 Patna 155) which says that a decree for redemption can be passed along with a decree for accounts and in case on accounting it is held that any amount is due to the mortgagee then the mortgagee will be entitled to recover that amount. I do not think, it is necessary for me to consider that aspect of the matter in this case. The mortgage was executed in the year 1933 and its due date was sometime in the year 1936 and the statutory mortgagee namely, defendant-second party came in possession in June, 1944. The Bihar Money Lenders Act, 1974 came into force in 1974 itself. Section 12 of this Act provides that all usufructuary mortgages including those executed prior to the enforcement of the Act shall stand redeemed on expiry of seven years from the date of mortgage. A procedure has also been laid for speedy recovery of possession of the mortgaged land under the Act. In this case from the dates I have mentioned above it will be evident that the statutory mortgagees have remained in possession for much more than seven years. A procedure has also been laid for speedy recovery of possession of the mortgaged land under the Act. In this case from the dates I have mentioned above it will be evident that the statutory mortgagees have remained in possession for much more than seven years. The debt, therefore, stand satisfied and the mortgage stands redeemed. Mr. Indu Shekhar Pd. Sinha faced with this difficulty said that under section 3 of the Act powers have been given to the State Government to exempt certain class of properties from application of the Act. He drew my attention to Notification No. S.O. 207 dated 30.2.1981 issued by the State Government. According to this Notification, section 12 of the Act will not apply to such mortgagees who possess not more than 7 acres in north and south Chotanagpur Division and in the district of Santhal Parganas and 5 acres in other parts of the State. He says that there is no evidence to suggest that the defendant-second party possess more than 5 acres of land. He says that this is so because the relief was not sought on the basis of Money Lenders Act. He is right there. But this Notification came into force on 13.2.1981 and it cannot have retrospective effect. The mortgage in question stood redeemed much before the exemption was given. The result, therefore, is that the mortgage stood redeemed and the plaintiffs are entitled to recovery of possession from the defendant-second party, who, to the exclusion of the defendant-first party, have been found to be in possession with respect to 14 kathas 171/2 dhurs of land (the details of which I have mentioned earlier). 6. Mr. Sinha also prayed that a decree for mesne profits should be given. I seriously considered this prayer and I think that they are not entitled to the same because the deposit under section 83 was made in the year 1943 and the suit giving rise to this appeal was filed in the year 1968. If mesne profit has to be awarded then it would be from 1943 itself. The plaintiffs did not file the suit for good 25 years and thereby disentitled themselves to ask for mesne profits. 7. In the result, the suit giving rise to this appeal is decreed and the plaintiffs are entitled to take possession from defendant-second party with respect to 5 kathas of Plot no. The plaintiffs did not file the suit for good 25 years and thereby disentitled themselves to ask for mesne profits. 7. In the result, the suit giving rise to this appeal is decreed and the plaintiffs are entitled to take possession from defendant-second party with respect to 5 kathas of Plot no. 439 from east, 5 kathas 2 dhurs of Plot no. 1466 from west and 4 kathas 141/2 dhurs of Plot no. 1467 from east. It is made clear that any claim made by the defendant-first party, defendant-third party or anyone claiming under them will not be entertainable with respect to the lands referred to above. The appeal is accordingly allowed, but without costs. Appeal allowed.