Balpan Mahton and Another vs Jadav Nath Deogharia and Others

S.P. Sinha, J.—This appeal, by leave, is directed against a judgment and decree passed by ''a learned single Judge of this court in Second Appeal No. 774 of 1964 on 1st February, 1967.

The judgment passed by the learned single Judge has been assailed on two grounds; (i) the plaintiffs had no right to sue for possession of the land because they had lost that right on the vesting of the estate, and (ii) in any event, the defendants-appellants could not be ousted from possession until the sub-mortgages in their favour had been redeemed. According to the learned counsel for the appellants, the learned single Judge had failed to appreciate the nature of the suit and the relief claimed therein. If the same had been considered in its proper perspective, the suit could not have been decreed.

Before dealing with the contentions, it will be necessary to state a few relevant facts.

The plaintiffs suit was for declaration of title and recovery of possession over 1.92 acres of land, being the southern half of Revenue survey plot No. 752 situate in village Chandaghasi, police station Ranchi Sadar. Admittedly the plaintiffs were the eight annas landlords of the tenure to which the suit land appertained. On partition between the co-sharers, the suit land fell to the exclusive share of the plaintiffs. On the 29th December, 1943, the ancestors of the present plaintiffs executed a usufructuary mortgage bond in favour of Motilal Sao (defendant No. 4), the consideration being a sum of Rs. 7,350. By virtue of the said mortgage, Motilal Sao came in possession of the mortgaged property. On the 18th February, 1955, he created a sub-mortgage in respect of a part of the suit land, that is to say, in respect of 0.96 acre only in favour of defendants 1 to 3. On the 2nd of March, 1955, the tenure of the plaintiffs vested in the State of Bihar in accordance with the provisions contained in Section 4 (a) of the Bihar Land Reforms Act, 1950 (hereinafter referred to as the ''Act''). Thereafter on the 22nd of April, 1955, another sub-mortgage in favour of defendants l and 2 was created by defendant No. 4 in respect of a further area of 0.96 acre of the suit land. The area sub-mortgaged under the two deeds thus together came to 1.92 acres of land.

It appears that on the 12th of August 1955, a notice under Clause (g) of Section 4 of the Act was issued against the original mortgagee Motilal (defendant No. 4). It further appears that on service of the said notice u/s 4 (g) of the Act, the said Motilal filed a claim in respect of his mortgage debt, u/s 14 of the Act. The application u/s 14 of the Act was disposed of on 10th of Jan., 1957. It was held that the entire mortgage money had since been satisfied and that nothing remained to be paid to the applicant. This finding was arrived at on calculation of the usufruct from the property utilised by the mortgagee.

The plaintiffs'' case then is that defendant No. 4 on receiving the notice u/s 4 (g) of the Act for vacating the mortgaged property, put the plaintiffs in possession of it. The plaintiffs, therefore, came into possession of the disputed land. Defendants 1 to 3, however, raised a dispute which ultimately culminated in a proceeding u/s 145, Cr. P. C, The said proceeding was decided in favour of the defendants by order dated 7th September, 1960. Defendants 1 to 3 thereafter dispossessed the plaintiffs. Hence the suit.

The defence was that in consequence of the vesting of the estate in the State of Bihar, the plaintiffs lost all their rights in the suit property. Since the defendants were in possession of the suit property as sub-mortgagees, no suit for recovery of possession was maintainable, without redeeming the mortgages created in their favour.

The plaintiffs'' suit was decreed by the trial court as also by the appellate court, which was confirmed also by this court by the impugned judgment. One of the facts which was found was that the plaintiffs had came in possession of the suit land at some stage after the vesting of the estate and they continued in such possession until they had been dispossessed by the defendants by virtue of the order passed in the proceeding u/s 145 Cr. P. C. I have specially made a mention of the aforesaid finding because this will have a great bearing on the contentions raised on behalf of the appellants. I have already briefly stated the grounds on which the impugned judgment of the learned single Judge has been assailed before us. To recapitulate, by the first ground the plaintiffs right to sue for possession is being challenged, and the second ground is that, in any event, without redeeming the sub-mortgages, the plaintiffs could not get into possession of the suit land. Basically, therefore, the question is whether the defendants-appellants claiming as sub-mortgagees can resist the claim of the original mortgagor for possession of the suit land when the original mortgagee''s right to hold the land has got extinguished on full payment of his mortgage money.

It has to be borne in mind that the concurrent finding of fact as given by the trial court and the appellate court is that after receiving notices u/s 4 (g) of the Act, the original mortgagee gave up possession of the suit land in favour of the plaintiffs and that the plaintiffs came in possession of it.

Now the arguments on behalf of the appellants is that the plaintiffs had no right to sue for possession because they had lost that right on the vesting of the estate. Elucidating this argument, learned counsel for the appellants urged that by virtue of the averments made in paras 6 and 7 of the plaint and also by virtue of the order passed u/s 14 of the Act, there was no subsisting mortgage at the time of the vesting of the estate, and if at all it was the defendants who were in possession of the suit property not as mortgagees, but in their own rights.

I do not think this argument can prevail. Paras 6 and 7 of the plaint merely stated this much that immediately after 12-8-1955, namely, after the issue of notice u/s 4 (g) of the Act to defendant No. 4, the plaintiffs re-entered into possession of the entire zarpeshji property including the southern portion of the plot in suit and remained in possession of the said plot till they were dispossessed by the order u/s 145, Cr. P. C. dated 7-9-1960 between the plaintiffs as the first party and the defendants Nos. 1 to 3 as the second party, I do not find any averment in these sentences contained in para 7 of the plaint indicating that the mortgage had ceased to subsist. The said para only talks of re-entering of the plaintiffs on the land mortgaged, but it does not further say that such re-entry was made because the mortgage had ceased to subsist at any prior point of time or at least before the vesting of the estate took place,

Similarly, the order u/s 14 of the Act also does not indicate that the mortgage had ceased to subsist at the time when the estate got vested in the State of Bihar. The order u/s 14 of the Act is only to the effect that on taking accounts of the usufruct of the property utilised by the mortgagee, nothing remained to be paid to him. Such an order can hardly be understood as specifying a date on which the mortgage had ceased to subsist; if at all, the mortgage ceased to subsist only after the passing of the said order. This order u/s 14 of the Act was passed on the 10th of Jan., 1957. These materials, therefore, cannot be the basis for the argument that the right to sue for possession had been lost because on the date when the estate vested, the mortgage did not subsist.

Learned counsel for the appellants referred to a decision of the Supreme Court in the case of Surajnath Ahir and Others Vs. Prithinath Singh and Others, for the proposition that if on the date of the vesting of the estate the plaintiffs were not in possession of the suit property, either directly or through their mortgagee, that property would also vest and the privilege granted u/s 6 of the Act would not then enure to the plaintiffs'' benefit.

There can be no dispute about this proposition, but it all depends on the facts and circumstances of each case. In the instant case, the finding of fact is that the plaintiffs were put in possession by the original mortgagee sometime after the said mortgagee received notice u/s 4 (g) of the Act. The original mortgagee thereafter laid his claim u/s 14 of the Act which was decided only on the 10th of Jan., 1957. On these facts, it cannot be said that on the date of the vesting, the plaintiffs were not in possession of the suit land, either directly or through their original mortgagee. The ratio laid down by the Supreme Court in the case of Suraj Ahir (supra) has, therefore, no application to the instant case. The decision in the case of Suraj Ahir (supra) was also cited before the learned single Judge and he also rejected it, and, in my opinion, rightly. The claim case by Motilal (defendant No. 4) was not filed until after vesting and as such the original mortgage subsisted at least until 10th of Jan., 1957, when the claim case was decided. This fact brought the plaintiffs'' right within the exceptional provision of Section 6 (1) (c) of the Act The said section lays down that lands used for agricultural or horticultural purposes forming the subject-matter of a subsisting mortgage, on the redemption of which the intermediary is entitled to recover ''khas'' possession thereof, shall be deemed to be settled by the State with such intermediary, subject to payment of fair and equitable rent as may be determined. On the facts as stated above, the provisions contained in Section 6 (1) (c) of the Act are clearly applicable to the case. In my opinion, therefore, there is no infirmity in the impugned judgment in so far as it has been held that the plaintiffs had a right to sue for possession of the suit land and such right had not been lost by reason of the vesting of his tenure in the State of Bihar.

The next contention is that in any event, the plaintiffs must redeem the sub-mortgages before they can be entitled to khas possession of the land. Elucidating his argument further, learned counsel for the appellants has urged that the order passed u/s 14 of the Act was not binding on the appellants, as they have not been made parties to that proceeding. In this connection reference has been made to the Full Bench decision of the Madras High Court in the case of Chinnah Goundan and Others Vs. Subramania Chettiar and Another, , with particular stress on the observations contained in para 15 of the decision, wherein it has been observed that "where a mortgagee brings a suit on the mortgage but without impleading all the persons interested in the equity of redemption on the date of suit, obtains a decree in execution whereof the mortgaged property is sold, the persons who were not made parties would not be affected by these proceedings and they would have their right of redemption un-impaired. If they happened to be in possession, the court sale could not entitle the purchaser to eject them. In such Found case, the remedy of the mortgagee or the purchaser who by reason of his purchase obtained the right of the mortgagee at least, would be to file a fresh suit on the mortgage."

I do not think, I need dilate on the observations stated above by their Lordships of the Madras High Court. The observations are true in their own field. If a person has not been made a party to a proceeding, certainly he cannot be bound by the result of the proceeding, and as the decision of the Madras High Court says, in such a case, he may have to take recourse to filing a suit for redress of his grievance. But this proposition cannot be extended to mean that after the plaintiffs have been dispossessed by the sub-mortgagees, they cannot sue for recovery of possession and declaration of their title, If the sub-mortgagees think that they have still a right to pursue or a grievance to ventilate, they may choose such forum as they may think proper, but certainly they cannot stifle the plaintiffs'' claim for recovery of possession over the land over which they had validly come in possession and had continued as such. The learned single Judge has observed that the sub-mortgagees may pursue their rights against their own mortgagee. This may also be one of the courses open to them. Whatever be it, the decision of the learned single Judge that the plaintiffs were entitled to maintain the suit and recover possession over the suit property without having to redeem the two sub-mortgages, is a valid decision and must be upheld.

In the result, I do not find any merit in this appeal. It is, accordingly, dismissed. There will, however, be no order as to costs.

Chaudhary Sia Saran Sinha, J.

Respectfully I agree to the order proposed by my learned brother, I would, however, like to make a few observations of my own. The tenure in which the suit land was included would vest absolutely in the State of Bihar, free from all encumbrances, as envisaged in Section 4 of the Bihar Land Reforms Act, 1950. Undisputedly, the lands in dispute were and are agricultural lands. The two conditions required for the application of Section 6 of the said Act exist in the instant case. There was a subsisting mortgage on the date of the vesting and that the land included in the subsisting mortgage was such that on the redemption of the mortgage the plaintiffs were entitled to recover khas possession thereof. The subsisting title of the plaintiffs, therefore, stands well supported by the benefits accruing to them by the provisions of Section 6 (1) (c) of the Bihar Land Reforms Act, 1950, and they are entitled to maintain a suit for declaration of title and recovery of possession.

The plaintiffs dispute the two transactions evidenced by Exts. A and A/1 as sham. Be that as what it may, the encumbrances created by these two documents would also lapse and cease to exist with the vesting of the estate, Service of a notice or service of an order as contemplated in Section 4 (g) of the said Act is not a condition precedent to the entitlement of the persons concerned to prefer their legitimate claim as envisaged in Section 14 of the Act. The defendants failed to prefer any claim in respect of the encumbrances evidenced by Exts. A and A/1 and they are to thank themselves.