Letters Patent Appeal No.600 OF 1998 ----- Against judgment and order dated 3rd April, 1998 passed by a learned single Judge of this Court in C.W.J.C. No.9583 of 1988. ----- PRABHAWATI KUER & ORS. ------------ Appellants Versus THE STATE OF BIHAR & ORS. ------------ Respondents ----- For the Appellants : Mr.Shashi Shekhar Dwivedi,Sr.Adv. For Respondent No.6: Mr.Kamal Nayan Chaubey,Sr.Adv. For the State : Mr.Shambhu Nath, J.C. to G.P.-V. ----- P R E S E N T THE HON'BLE MR. JUSTICE BARIN GHOSH THE HON'BLE MR. JUSTICE JAYANANDAN SINGH Barin Ghosh & Jayanandan Singh,JJ: On 25th July, 1975 Bihar Money Lenders Act, 1974 came into effect. Section 12 of the said Act provides, amongst others, 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 the 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 execution 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 2 Rules. 2. In view of the provisions contained in section 12 of the Act a dispute cropped up as to whether a mortgage executed much before coming into force of the said Act will also be dealt with in the manner prescribed in section 12 of the said Act. This dispute has been resolved by a Full Bench of this Court in the case of Raghunandan Rai Vs. State of Bihar, reported in 1987 BLJ 144. The Full Bench has pronounced that in order to apply section 12 of the Act the mortgage must be a subsisting one on the date of enforcement of the Act, i.e. in order to come within the ambit of the statutory redemption the mortgage must be a redeemable mortgage as on the date the Act came into force. The Full Bench has further pronounced that by virtue of section 27 of the Limitation Act, 1963 not merely the legal remedy is barred but in fact the very right stands extinguished and therefore not merely the remedy of recovering possession is lost but the very right of redemption stands extinguished on expiry of the period of limitation mentioned in the Limitation Act by operation of section 27 thereof and in such view of the matter, if the right to redeem a mortgage is barred by limitation, the very mortgage ceases to exist. 3. The owner of the land in question with which we are concerned in the present appeal created a usufructuary mortgage on 15th June, 1940 3 in favour of one Chandra Shekhar Mishir for having had obtained a mortgaged loan of Rs.200/-. The said usufructuary mortgage was registered. Subsequent thereto, the self same owner created yet another usufructuary mortgage of the self same land on 30th June, 1948 in favour of the writ petitioner, Suraj Shekhar Mishra, whose heirs are appellants before us, for having had obtained a mortgaged loan of Rs.1000/-. The said usufructuary mortgage was also registered. In the second usufructuary mortgage dated 30th June, 1948 it was recorded that the mortgagee had created a mortgage on 15th June, 1940 in favour of Chandra Shekhar Mishir and that the said Chandra Shekhar Mishir is dead and that Suraj Shekhar Mishra, being the mortgagee in the second usufructuary mortgage dated 30th June, 1948, is in possession of the land in question. 4. In the year 1973 respondent no.6 in the writ petition, namely, Sheo Shankar Prasad, filed Title Suit No.75 of 1973 against the original writ petitioner, Suraj shekhar Mishra, seeking to redeem both the usufructuary mortgages. During the pendency of the said suit, as aforesaid, the Money Lenders Act came into effect and soon thereafter, while the suit was still pending, Sheo Shankar Prasad applied for redemption of the 1948 usufructuary mortgage from the original writ petitioner, Suraj Shekhar Mishra, by taking recourse to section 12 of the Act. In defence, 4 Suraj Shekhar Mishra disclosed that there are two usufructuary mortgages, namely, the usufructuary mortgage dated 15th June, 1940 and the usufructuary mortgage dated 30th June, 1948. He contended that in the year 1949 the mortgagor sold to him the equity of redemption of the said usufructuary mortgages orally for a sum of Rs.90/-. It was stated that by virtue thereof he became the owner of the land in question. 5. In the rejoinder filed by Sheo Shankar Prasad he contended that there was no oral sale of the equity of redemption of the said mortgages and that, being the heir of the original mortgagor, he has a right to redeem both the usufructuary mortgages. Before the authority concerned a plea was taken by the original writ petitioner that by reason of the provisions contained in the Limitation Act, the usufructuary mortgage of 1940 did not exist on the date of coming into force of the said Act and accordingly redemption thereof does not arise. 5. Whether the original writ petitioner claimed right under the first usufructuary mortgage before the first authority is not known, for the counter filed by Suraj Shekhar Mishra before the first authority has not been placed before us. Be that as it may, the first authority held that there was no sale of equity of redemption in favour of the original writ petitioner and that the usufructuary mortgage of 5 1948 in his favour did not cease to be in existence as on the date of coming into force of the said Act and as such permitted redemption of the said mortgage with a direction to hand over possession of the land in question. Suraj Shekhar Mishra then tried his luck without any success before the first appellate authority as well as before the second appellate authority. He then filed a writ petition, which has been dismissed by the order impugned in the present appeal. In the writ petition the petitioner suppressed existence of the 1948 mortgage. In other words, he did not in the body of the petition utter a single word in that regard. A learned single Judge of this Court, while dismissing the writ petition, took serious note of the said state of affair. The learned Judge felt that the subject matter of the lis before the authorities concerned was the 1948 mortgage and not the 1940 mortgage and as the petitioner has failed to utter a single word about the 1948 mortgage, it would be safe not to permit the petitioner to canvass his case on the basis of limitation applicable to the 1940 mortgage and thus concluded the matter and dismissed the writ petition. 6. Before us, learned counsel for the appellants submitted that admittedly there were two usufructuary mortgages one of 1940 and the other of 1948 and admittedly as on the date of 6 coming into force of the Act, usufructuary mortgage created by the 1940 deed could not be redeemed. It was submitted that the writ petitioner was aggrieved solely by the direction issued by the authorities concerned to hand over possession of the land in question as by virtue of the 1940 usufructuary mortgage such direction could not be given and that being the basic case of the petitioner there was no suppression at all. 7. In our view, suppression, which would lead to dismissal of a lis must be such that disclosure thereof would automatically defeat the lis. In the instant case, non-disclosure of the 1948 usufructuary mortgage is not such a suppression that disclosure thereof would automatically lead to dismissal of the writ petition. When a party to a lis, where there are two separate mortgages, puts a defence solely on the basis of one of the mortgages, that suggests that he accepts that he has no defence in relation to the adjudication made pertaining to the other mortgage. Non-mentioning of that mortgage is not such a suppression that the writ petition would be dismissed on that ground. If redemption of the 1940 mortgage became barred by limitation, in view of the pronouncement of the Full Bench, the same is immune from the provisions of section 12 of the Act. Simply on the basis thereof, the original petitioner could 7 challenge in the writ petition the direction issued by the authorities concerned for handing over of possession of the land in question. 8. However, the fact remains that in the writ petition nowhere the original petitioner claimed his title through the mortgagee of the first usufructuary mortgage. According to the petitioner, right of the original mortgagor to redeem the first usufructuary mortgage was purchased by him. It was not pleaded that upon purchase of such right the mortgage was redeemed. At the same time, there is no plea that as the sole heir of Chandra Shekhar Mishir, upon death of Chandra Shekhar Mishir, the original petitioner became the mortgagee under the 1940 usufructuary mortgage. That being the situation, on the plea put forward by the original petitioner, the conclusion would have been that the 1940 usufructuary mortgage cannot be used as a shield to ward of the direction issued by the authorities concerned to hand over possession of the land in question to Sheo Shankar Prasad. 9. In the circumstances, appeal fails and the same is dismissed. (Barin Ghosh,J.) (Jayanandan Singh,J.) Patna High Court 24th June, 2008 N.A.F.R./Pradeep 8