Judgment M.Y.Eqbal, J. 1. In this writ application, the petitioner has prayed for issuance of appropriate writ in the nature of certiorari for quashing the order dated 2-5-92 passed by the respondent No. 4, Additional Collector, Hazaribagh in M.L.R. case No. 1/89 and also the order dated 22-12-88. passed by the respondent No. 5, Land Reforms Deputy Collector, Hazaribagh in case No. 48/85/86 and part of the order dated 14-10-85 passed by the Circle Officer, Ichak in Case No. 1/78. All these orders have been annexed as Annexures 5, 4 and 3 to the writ petition respectively. By the impugned orders application filed by the respondent No. 7 under Sec. 12 of the Bihar Money Lenders Act, 1974 has been allowed and petitioner has been directed to put the respondent in vacant possession of the suit property. 2. The petitioners case is brief is that one Amrit Barhi, father of respondent No. 7, sold and transferred 1.22 acre of land comprised within various plots of Khata No. 12 of village Carie, P.S. Ichak, District Hazaribagh in favour of petitioner in terms of registered deed of sale dated 9-8-67. On the same day i.e. 9-8-67, the petitioner excuted and agreement to reconvey the suit property in favour of father of respondent No. 7 on the condition that the father of respondent No. 7 must repay the entire consideration money to the petitioner within a period of 7 years i.e. by 9-8-74. The petitioners further case is that the said transaction was a transaction of out and out sale and only a privilege was given to the father of the respondent No. 7 to get suit property reconveyed to him if he re-pay the entire consideration amount within a period of seven years. It is stated that the vendor namely, the father of respondent No. 7 did not file any suit for the specific performance of agreement rather after his death the respondent No. 7 instead of filing any suit for specific performance filed an application under Sec. 12 of the Bihar Money Lenders Act, 1974 before the Circle Officer, Ichak claiming recovery of possession of the suit property on the ground that the petitioner was in possession as a mortgagee. The said application was registered as M.L. case No. 1/78. The said application was registered as M.L. case No. 1/78. On being noticed by the Circle Officer, the petitioner appeared and filed show cause challenging the maintainability of the application under Sec. 12 of the said Act. It is further stated that the Circle Officer had no jurisdiction to entertain the application. The petitioner raised a preliminary objection also with respect to maintainability of the proceeding but the preliminary objection raised by the petitioner was not allowed up to the revision and the Circle Officer was directed to decide the proceeding on merit. Consequently, the respondent No. 6, Circle Officer, after hearing the parties, in terms of order dated 14-10-85 held, that the proceeding under the said Act was not maintainable. However, the Circle Officer instead of dismissing the application after recording the said finding directed that the rent receipts with respect to vendees property should be issued in the name of respondent No. 7 and further held that the issuance of rent receipts in favour of petitioner be stopped. Aggrieved by the last part of the order the petitioner preferred an appeal before the Land reforms Deputy Collector, Hazaribagh (respondent No. 5) being Appeal No. 44/85-86. The respondent No. 5, however, after hearing the parties dismissed the appeal and modified the order passed by the Circle Officer holding that the proceeding under Sec. 12 of the Act was maintainable and further directed the petitioner to hand over possession of the property in question to the Respondent No. 7 and to execute a registered sale-deed in respect thereof in favour of respondent No. 7. Thereupon, the petitioner preferred a revision application before the Additional Collector, Hazaribagh, respondent No. 4 being M.L.R. case No. 1/89 which was dismissed in terms of order dated 2-5-92. Hence, the petitioner challenged all those orders by filing the instant writ petition. 3. Mr. N.K. Prasad, learned Sr. Counsel appearing for the petitioner, assailed the impugned order passed by the respondent-authority as being illegal and wholly without jurisdiction. Learned Counsel firstly submitted that the respondent Nos. Hence, the petitioner challenged all those orders by filing the instant writ petition. 3. Mr. N.K. Prasad, learned Sr. Counsel appearing for the petitioner, assailed the impugned order passed by the respondent-authority as being illegal and wholly without jurisdiction. Learned Counsel firstly submitted that the respondent Nos. 4 and 5 being the appellate and revisional authorities have committed grave error of the law in holding that the application under Section 12 of the Act was maintainable particularly in view of the fact that no appeal or revision was filed by the respondent No. 7 against the original order of respondent No. 6, the Circle Officer, who held that the application under Sec. 12 of the Act was not maintainable. Learned Counsel further submitted that from perusal of the sale-deed dated 9-8-67, it would appear that it was out and out an absolute sale by the father of the respondent No. 7 in favour of the petitioner coupled with an agreement by the petitioner agreeing to reconvey his property in the event the amount is repaid within seven years. According to the learned Counsel, time for reconveyance was stipulated in the agreement and in such type of transaction time always become an essence of contract and by lapse of time right, if any, lapses and even a suit for specific performance cannot be entertained. In this connection, learned Counsel relied upon a decision of the apex Court in the case of Smt. Bismillah Begum V/s. Rahmatullah Khan (dead) by LRs. -- . Learned Counsel then submitted that Sec. 12 of the Act applies only in a case of usufructuary mortgage and not in case of sale with an agreement to reconvey. According to the learned Counsel, the appellate Court and the revisional Court virtually granted a decree for specific performance in favour of the respondent No. 7 which is wholly without jurisdiction inasmuch as it is the Civil Court only which can pass such an order or decree for specific performance. 4. On the other hand, Mrs. Sheela Prasad, learned Counsel appearing for the respondent No. 7, submitted that transaction was not out and out sale rather it was a usufructuary mortgage. 4. On the other hand, Mrs. Sheela Prasad, learned Counsel appearing for the respondent No. 7, submitted that transaction was not out and out sale rather it was a usufructuary mortgage. According to the learned Counsel, the respondents-authorities have rightly come to the conclusion that the petitioner by practising fraud upon respondent No. 7 got a sale-deed executed on 9-8-67 instead of a usufructuary mortgage and this fact was not brought to the notice of father of respondent No. 7 till he died. The learned Counsel lastly submitted that in any view of the matter the impugned orders passed by the respondents are perfectly in accordance with law. 5. Before appreciating the rival contention of the learned Counsel for the parties, it would be useful to look into the relevant provisions of the Bihar Money Lenders Act, 1974. By this Act of 1974, the earlier Bihar Money Lenders Act, 1938 and Bihar Money Lenders (Regulation and Transaction) Act, 1939 have been repealed. The aforesaid Act of 1974 was enacted in order to amend the law relating to regulation of money lending transaction and to grant relief to debtors in the State of Bihar. Sec. 2(j) defines the term loan as follows: "Loan" means a loan on interest advanced by a money lender whether of money or in kind and shall include mandeorha, sawaiya, rehan, Bandhak, Pauni, sudharna, kishti and any transaction on a bond bearing interest executed in respect of a past liability and any transaction which, in substance, is a loan but shall not include- (i) a loan advanced by the State Government or by local body authorised by the State Government ; (ii) a deposit of money in a Post Office Savings Bank or a deposit of money or any other property in any other bank or on any Company or with a Co-operative Society registered, or deemed to be registered, under the Bihar and Orissa Cooperative Societies Act, 1935. 6. 6. Sec. 12 of the Act, which is the relevant Section, reads as under: Usufructuary mortgages and their redemption.-Notwithstanding anything to the contrary contained in any law or anything having the force of law or in any agreement, the principal amount and all dues in respect of an usufructuary mortgage relating to any agricultural land, whether executed before or after the commencement of this Act, shall be deemed to have been fully satisfied and the mortgage shall be deemed to have been wholly redeemed on expiry of a period of seven years from the date of the execuition of the mortgage bond in respect of such land and the mortgagor shall be entitled to recover possession of the mortgaged land in the manner prescribed under the Rules: Provided that if the mortgage bond had been executed before the commencement of this Act nothing in this section shall entitle the mortgagor to claim any accounts of profits from the mortgagee by reason of the benefit of redemption of the mortgage under this provision. 7. From bare perusal of the aforesaid provision, it is manifest that this provision applies to a usufructuary mortgage. The term usufructuary mortgage. has not been defined under the aforesaid Act, 1974. Clause (d) of Sec. 58 of the Transfer of Property Act defines the words "usufructuary mortgage" as follows: Where the mortgagor delivering possession expressly or by implication binds himself to deliver possession of the mortgaged property to the "mortgagee, and authorities him to retain such possession until payment of the mortgage money, and to receive the rents and profits and to appropriate the same in lieu of interest, or in payment of the mortgage money, or partly in lieu of interest and partly in payment of the mortgage money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee. 8. It. is, therefore, clear that to constitute a transaction as usufructuary mortgage, possession of the property is to be delivered to the mortgagee who will remain in possession of the mortgaged property and to get rent and profits from the property in lieu of interest. The question, therefore, falls for consideration in the instant case is whether the documents in questional are in the nature of usufructuary mortgage or a mortgage by condition sale. The question, therefore, falls for consideration in the instant case is whether the documents in questional are in the nature of usufructuary mortgage or a mortgage by condition sale. From perusal of Annexure-1, a sale-deed dated 9-8-67, it appears that it is out and out sale by the father of respondent No. 7 in favour of the petitioner. The nature of document has been shown as "Bikri Patra" (Kewala). There is no recital anywhere in the said document for payment of consideration amount as loan or there is any stipulation for possession of the property in question by the purchaser and enjoyment of the property in lieu of interest. Annexure-1/A is a unregistered agreement executed on the same date wherein, it is stated that the vendor sold the land in question to the purchaser by way of an absolute sale. However, it was agreed between the parties that if the consideration amount is repaid by the purchaser to the vendor within a specified period then the purchaser shall reconvey the property to the vendor. This document is, therefore, a simple agreement for reconveyance and the transaction cannot be said to be either a usufructuary mortgage or mortgage by conditional sale. 9. As noticed above, the father of the respondent No. 7, who was the vendor, neither tendered the consideration amount till 1974 nor took any step for reconveyance of the property and it was only after his death the respondent No. 7 filed an application under Sec. 12 without following the requirements of Rules 9 and 10 of the; Bihar Money Lenders Rules. 10. From perusal of original order passed by the Circle Officer, it appears that he has taken into consideration all facts and came to a right conclusion that the transaction does not amount to mortgage and the provision of Sec. 12 of the Money Lenders Act does not apply. However, the Circle Officer in operative portion of the order directed that issuance of rent receipt in favour of the petitioner should be stopped. The petitioner aggrieved by only that part of the order, filed an appeal before the Land Reforms Deputy Collector. However, the Circle Officer in operative portion of the order directed that issuance of rent receipt in favour of the petitioner should be stopped. The petitioner aggrieved by only that part of the order, filed an appeal before the Land Reforms Deputy Collector. It is worth to mention here that the respondent No. 7 did not challenge the order of the Circle Officer by which it was held that application under Sec. 12 was not maintainable, Inspite of the aforesaid fact, the Land Reforms Deputy Collector, being the appellate authority, has set aside the order of the Circle Officer and held that the transaction was a conditional sale. The appellate authority virtually passed a decree for specific performance of contract by directing the petitioner to execute a deed of reconveyance in favour of the respondent No. 7. In my opinion, the approach taken by the appellate authority is erroneous in law and is based on extraneous consideration. Similarly the revisional authority before whom the revision was filed has made out a third case which was never put forward by the respondent No. 7. The revisional authority held that as a matter of fact the father of respondent No. 7 wanted to transfer the property in favour of the petitioner by way of mortgage but by practicing fraud a sale-deed was executed and registered in favour of the petitioner. This conclusion arrived at by the revisional authority is totally based on conjecture and surmises and is beyond the pleadings of the parties. 11. Having regard to the aforesaid facts and circumstance of the case and the discussions made above, in my opinion, the orders passed by the respondent-authorities are bad in law and are liable to be set aside. 12. In the result, this writ: application is allowed and the impugned orders passed by the respondents as contained in Annexures 3, 4 and 5 are quashed.