CIVIL WRIT JURISDICTION CASE No.6472 OF 1991 ------- In the matter of an application under Articles 226 and 227 of the Constitution of India. (i) Satyendra Singh (ii) Surendra Singh (iii) Girendra Kumar Singh (iv) Harendra Singh (v) Dharmendra Singh All are sons of late Nagendra Singh and all residents of village-Rongha, P.S. and Anchal-Imamganj,District-Gaya. (vi) Rajmani Singh, wife of Shisupal Singh and D/o late Nagendra Singh,resident of Village and P.O.-Ayre, P.S.-Atari, District- Gaya. .. (substituted) .. Petitioners Versus 1. MOTI PRASAD, son of Nathun Sao, resident of village Gareria, P.S. and Anchal Imamganj, District-Gaya. 2. Assistant Consolidation Officer, Imamganj (Gaya). 3. The Consolidation officer, Imamganj, Distrtict-Gaya. 4. Deputy Directyor of Consolidation, Gaya. 5. Joint Director of Consolidation, Magadh Division, Gaya. ----------- For the Petitioners : Mr. Arbind Kumar Singh, Advocate. For the Respondents : N o n e P R E S E N T THE HON'BLE JUSTICE SMT. SHEEMA ALI KHAN Sheema Ali Khan,J. This writ application has been filed for quashing of Annexures-4 to 6, the orders passed by the Consolidation Authorities. The father of the petitioners purchased 0.26 Acres 2 of lands appertaining to C.S.plot no.541 in village-Greria within a sub-division of Sherghati in the district of Gaya in the year 1986 from the sons of Nathun Sao, the recorded tenant. The respondent claims that Nathun Sao had executed a deed of mortgage on 04-09-1953, in which it has been mentioned that the amount taken by way of loan had to be redeemed within a period of two years or else the mortgagee shall remain in possession over the lands in question if the mortgagor fails to pay the loan amount. The three courts have discussed the law relating to the redemption of mortgage deed in context of Section 12 of the Bihar Money Lenders Act, 1974 (hereinafter to be referred to as `the Act’ for the sake of brevity). Section 12 of the Act provides as follows: “12. 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 execution of the mortgage bond in respect of such land and the mortgagor 3 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 or profits from the mortgagee by the reason of the benefit of redemption of the mortgage under this provision.” The provision of the Bihar Money Lenders Act envisages that the lands stand redeemed on expiry of the period of seven years from the date of execution of the mortgage bond in respect of the land and the mortgagor shall be entitled to recover the possession. The manner in which possession is to be recovered has been defined in Rule 4, 9 and 10 of the Bihar Money Lenders Rules, 1977 (hereinafter to be referred to as `the Rules’ for the sake of brevity) in which it has been mentioned that the mortgagor shall send a notice by registered post in the manner described under Rule 9 and thereafter the mortgagor may file an application before the Collector for recovery of possession. It would appear from the order of the three courts that, in fact, the vendor of the petitioner and the mortgagor were not made party, to substantiate the fact whether any step was taken by the vendor to redeem possession of 4 the lands in question as envisaged under Rules 4, 9 and 10 of the Rules. The authorities on the basis of the fact that the time for repayment of the loan amount by the mortgagor is prescribed, has come to the conclusion that the respondent- mortgagee had title by virtue of the deed of mortgage. The court has interpreted the mortgage deed to be read as a mortgage by conditional sale. The case of the mortgagee is that after a period of two years, the mortgagee has acquired title as he has remained in possession over the lands in question. The three authorities have, therefore, held that the document of the sale in favour of the petitioner is a void document, as the vendor of the petitioner has no title over the lands in question by virtue of the mortgage deed of the year 1953. It is relevant to state here that the original petitioner has been found in possession by the Consolidation Authority on spot verification made of the lands in question and recommendation has been made for mutating the name of the original petitioner. Counsel for the petitioners submits that the court below has wrongly interpreted the deed 5 of mortgage in favour of the respondent. It may be noted that the orders have been passed without making the vendor and the mortgagor a party in the case. It would not be possible for the Consolidation Authorities to determine whether deed of mortgage has been redeemed or not, keeping in view of the fact, that the original petitioner claims that he was in possession at the time when the spot verification was made, as also during the pendency of the present proceeding. Keeping all these facts in mind this Court feels it appropriate that the petitioner should file a suit for declaration of his title, which would necessitate the court to enter into the question of interpretation of the mortgage deed. The orders contained in Annexures-4 to 6 will be subject to the result of the suit. With the above observations/directions this writ application is disposed of. ( Sheema Ali Khan, J.) Patna High Court, Patna Dated the 28th October, 2010 A.H. /NAFR