Judgment Gurusharan Sharma, J. 1. The plaintiffs are the appellants. The original plaintiff, Nagar Mal filed Title Suit No. 73 of 1975 in the Court of Subordinate Judge, Bettia against the defendant Dwijendra Kumar Dwivedi for realisation of mortgage money alongwith interest in respect of five mortgage deeds. 2. According to the original plaintiff the defendant borrowed a sum of Rs. 10,000.00 and on 1.7.1968 executed five mortgage bonds of Rs. 2000.00 each for convenience of repayment of the loan amount. The mortgages were for a period of five years and total six acres land was involved therein. 3. The mortgagee was said to have handed over the five mortgage deeds and possession of the mortgaged lands to the mortgagor. However, on the request of the mortgagee, the mortgagor settled those lands with him for a period of three years on a hunda for Rs. 3600.00 per annum. The mortgagee as hundedar cultivated the lands on that basis, but paid noting by way of hnuda. 4. According to the terms of the mortgage deeds, the mortgagee, in case of the dispossession, was liable to pay interest at the rate of 1% per annum. In such circumstance they were anomalous mortgages. 5. In his written statement, the defendant admitted execution of the mortgage deeds as also taking of his possession on the lands covered thereunder as hundedar at the rate of Rs. 3600.00 per annum. He claimed to have retained possession from 1.7.1968 to 30.6.1972 and paid total sum of Rs. 15,000.00 to the mortgagor by way of hunda. Thereafter the mortgagor himself took possession of the lands on 1.7.1972. 6. However, the defendant pleaded to have executed usufructuary mortgages with a condition about the payment of interest at the rate of 1% per annum in case the mortgagee was dispossessed. 7. After coming into force of the Bihar Money Lenders Act, 1974 (hereinafter referred to as the Act) from 20.3.1975, as the mortgage completed seven years of his possession over the land under mortgage on 1.7.1975, the five mortgage deeds in question stood satisfied under Sec. 12 of the Act. 8. According to the defendant he took possession of the lands under mortgage on 25.12.1979 and claimed that the plaintiff was liable to pay a sum of Rs. 8. According to the defendant he took possession of the lands under mortgage on 25.12.1979 and claimed that the plaintiff was liable to pay a sum of Rs. 19,600.00 under Sec. 13 of the Act to him as he ramained in possession of the lands in question during the period from 1.7.1975 to 25.12.1979 at the rate of Rs. 3600.00 per annum. 9. During the pendency of the suit, the original plaintiff died and his heirs and legal representatives were duly substituted in the suit. 10. By the impugned Judgment and decree, the trial Court dismissed the suit holding that the five mortgage deeds Exts. 1 to 1/d were in fact usufructuary mortgages and the suit was hit by Sec. 12 of the Act. The claim of the defendant that he was entitled to recover a sum of Rs. 19,600.00 from the plaintiffs, was held to be not maintainable. After 1.7.1979 there did not subsist relationship of mortgagor and mortgagee between the parties and the plaintiff had no cause of action for realisation of the mortgage money with interest. 11. A perusal of the mortgage deed Exts. 1 to 1/d revealed that the mortgagor received the mortgage amount and put the mortgagee in possession of the lands under mortgage. There was a Clause that in case of dispossession the mortgagee would be entitled to receive the principal amount alongwith interest at the rate of 1% per annum from the other properties of the mortgagor. However, there was no recital in Exts. 1 to 1/d that in case of dispossession of the mortgagee the property under mortgage itself was to be sold. 12. It if well stated that a provision in the deed to the effect that in case the mortgagor dispossessed the mortgagee, they would be liable to pay interest personally or from their other property, but it would not amount to personal convenant to pay and would not change the character of the mortgage from usufructuary mortgage to an anomalous mortgage. Such a provision was to be looked at in relation to other provision in the said document that the redemption was to be made within a specified period and if within that period the mortgagee was dispossessed from the property under mortgage, then he would be paid damage and interest. This would not change the essential characteristics of the document as a usufructuary mortgage. 13. This would not change the essential characteristics of the document as a usufructuary mortgage. 13. In any view, the argument of the Counsel for the appellants that for non-payment of any amount by way of hunda to the mortgagee right from beginning the mortgage deeds Ext. 1 to 1/d could not have been treated as usufructuary mortgages, was not tenable. In my opinion whether hunda amount was paid or not was a separate question and it had to bearing on the character of the deeds in question. 14. As evidence from the definition of usufructuary mortgage under Sec. 58(d) of the Transfer Property Act, it was not essential that possession was actually delivered, rather there might have been even promise to deliver possession or authority to retain possession until payment of the mortgage money. In the present case the admitted position was that possession was given in the beginning and as such these deeds were essentially usufructuary mortgages. 15. I find that there was no mention in the plaint as to why the interest of the period prior to three years from the filing of the suit was not claimed. In my opinion, on the basis of the evidence of D.W. 5 Ext. A the written note of the plaintiff, Nagar Mal, the trial Court rightly came to the conclusion that the mortgagee had received hunda dues till 1972. It was further found that the original plaintiff had taken possession of the lands under mortgage at least in the year 1972 and the defendant mortgagor was in possession at least till the filing of the suit. 16. I further find that the trial Court rightly held that the plaintiff was not entitled to claim recovery of Rs. 19,600.00 under Sec. 13(d) of the Act. 17. In view of Sec. 12 of the Act, the mortgagee debtor was not entitled to recover damages for the occupation of the land in question for more than 7 years under Sec. 13(d) of the Act. 18. In the aforesaid premises of the facts and circumstances, I do not find any reason to interfere with the impugned judgment and decree. 19. In the result, the appeal fails and is dismissed, but without costs.