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2007 DIGILAW 179 (PAT)

Ram Udgar Singh v. State Of Bihar

2007-01-25

CHANDRA MOHAN PRASAD

body2007
Judgment Chandra Mohan Prasad, J. 1. This revision is against the judgment dated 7th February 1998 of the 3rd Additional Sessions Judge, Patna passed in Cr. Appeal No. 139 of 1991 whereby the appeal has been allowed and the order of conviction of O.P. Nos. 2 to 8 under Sections 143 and 379 of I.P.C. and sentence of execution of probation bond for one year has been set aside. 2. The O.P. Nos. 2 to 8 were tried by the Judicial Magistrate 1st Class, Patna City under G.R. No. 504 of 1984 and the appellants were convicted and sentenced under Sections 143 and 379 of I.PC. The judgment of conviction and sentence was set aside by the above appellate judgment of the court below which is subject matter of challenge in this revision application. 3. The petitioner-complainant filed a complaint with the allegation that on 15th April 1984 at about 4:00 A.M. when he went to harvest his ripe gram crop, he saw that the O.P. Nos. 2 to 8 were cutting the corp. On protest by the petitioner-complainant, the accused persons, namely, O.P. Nos. 2 to 8 abused him, ran to assault him and thereafter the accused persons cut and too away the crop valued at Rs. 1,000.00 (one thousand). The complainant (P.W. 1) alleged that he had gone to harvest his land with Arbind Singh (P.W. 3), Binod Singh (P.W. 2) and Binay Singh (not examined). The complainant also stated that he had taken the land on usufructory mortgage from accused Parmanand Singh. P.W. 1 Ram Udgar Singh is the complainant himself, P.W. 2 Binod Kumar Singh is the son of Sarhu of the complainant and RW. 3 is the son of the complainant. No other witness was examined by the complainant. The usufructary mortgage-deed was proved by the complainant as Exts-1 & 2. The complainant also proved Ext-3 which is an order dated 13th April 1982 u/ s 145 Cr.P.C. pronouncing possession in favour of the complainant. 4. The defence through suggestion to the witnesses, including the complainant asserted their claim over the disputed land. From the side of the defence, Exts.-A and B were proved which show that the disputed land was sold by Kewala deeds dated 1st September 1980 and 24th June 1981 in favour of Uttimraj Devi, the wife of one of the accused Trishuldhari Singh. 5. From the side of the defence, Exts.-A and B were proved which show that the disputed land was sold by Kewala deeds dated 1st September 1980 and 24th June 1981 in favour of Uttimraj Devi, the wife of one of the accused Trishuldhari Singh. 5. While pronouncing a judgment of acquittal, the learned Sessions Judge considered that clinching evidence was not brought on behalf of the complainant to prove the charges beyond the shadows of reasonable doubt. On perusal of the evidence on record, I find that in this case, the complainant besides himself, had examined only RWs. 2 and 3 who are his son and the son of his Sarhu. No independent witness has been examined in this case. 6. The defence proved Ext-D which is a judgment dated 21st January 1985 of a previous criminal case in which the petitioner-complainant had levelled the same charge of theft of crop on two of the O.R Nos. 2 to 8 and one another. In that judgment, the accused were acquitted on the ground that the complainant could not bring any independent evidence and the defence had brought evidence to show their possession over the P.O. land and sale-deed executed by the owner of the land in favour of the O.Ps. was also proved. Taking into consideration those materials the judgment of acquittal was passed in this case. 7. So far this case is concerned, the complainant by filing Exts-1 & 2 claims usufructory mortgage over the P.O. land since the year 1966 u/s 12 of the Bihar Money Lenders Act 1974 (hereinafter, in short, referred to as the Act)-all usufructory mortgages shall be deemed to have been redeemed on expiry of a period of seven years from the date of execution of the mortgage bond in respect of such land and the mortgager shall be entitled to recover the possession of the mortgaged land in the manner prescribed under the Rules. Thus, the mortgagee, after expiry of seven years of the usufructory mortgage looses his right to remain over the land which by operation of law stands automatically redeemed and the mortgager becomes entitled to get the possession of the land back, though through the procedure prescribed under the law. 8. The learned counsel for the petitioner submits that the O.R nos. 8. The learned counsel for the petitioner submits that the O.R nos. 2 to 8, which includes the mortgager also did not take possession of the mortgaged land back, as prescribed under the Rules. The Rules under the Act prescribed that the mortgager will give a notice in writing to the mortgagee to hand over the possession to him and in case of failure of the mortgagee to hand over the possession, possession will be obtained through revenue court by filing a petition before that court. No doubt, the O.R Nos. 2 to 8 were unable to prove any kind of service of notice on the mortgagee, may be they were not in know of such Rules but still they have gone on claiming their possession over the land. The mortgagee cannot claim any right, title or any other right of possession over the land after the redemption over the mortgagee (sic- mortgage?) by operation of law in view of the provisions u/s 12 of the Act. A mortgagee after redemption resisting ouster is trespasser and not mortgagee (1963 BUR SC 1) 9. From the facts and circumstances of the case, it appears that after redemption of the usufructory mortgage by virtue of Sec.12 of the Act, there has been a bona fide dispute of possession over the land between the parties. In such view of the matters, I find that the learned Sessions Judge was quite justified in pronouncing the judgment of acquittal on the grounds, including the ground of bona fide land dispute. Therefore, I find no reason to interefere with the impugned judgment of acquittal. 10. In the result, this revision application is dismissed.