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Judgment
I.P. Singh, J.—This revision petition is directed against the order dated 26.2.1996 passed by the Executive Magistrate, Bagha by which. he has declared the possession over the disputed land in favour of opposite party Nos. 2 to 4 and has restrained the Petitioners to interfere with the peaceful possession of the opposite party over the disputed land.
Brief facts of the case are that a proceeding u/s 144 of the Code of Criminal Procedure (in short ''the Code'') was initiated with regard to 1 Bigha 13 Katha and 14 Dhurs land Khata No. 117 on the instance of opposite party No. 1 which was later on converted into a proceeding u/s 145 of the Code. Show cause was filed by both the parties. The case of opposite party Nos. 2 to 4 is that the disputed land belongs to one Bachan Raut who was Khatiyani Raiyat the land. Opposite Party No. 2 obtained the land from Bachan through the registered gift deed dated 27.7.77. On the basis of the said gift deed the land was mutated in the name of Basudeo Raut and Sanjai Raut and Jamabandi No. 586 was opened in their name. They have been paying rent for which receipt is also being granted to them.
Earlier also a proceeding u/s 144 of the Code was started on the instance of opposite party No. 1 which was decided in favour of opposite party Nos. 2 to 4.
The claim of the Petitioners is that the disputed land belongs to Bachan Raut but was mortgaged by him in favour of Most. Sheopujan Kuar vide a registered usufructuary mortgage deed dated 21.4.1934 for a sum of Rs. 1,000/- in which period of redemption was allowed for five years. On the basis of said deed the widow came over the possession of the land. The Petitioners, are son of Most. Shivpujan Kuaf. Further case of the Petitioner is that they had settled the land with opposite party No. 1 on Man Hoonda for getting the produce from the land. Thereafter after the period of 30 years which was provided. for redemption of a mortgage bond in the Indian Limitation Act, 1963 and an application was filed for creating the Jamabandi in their name of which the Circle Officer issued his order to create the Jamabandi in the name of the Petitioners by cancelling the Jamabandi already in the name of Sanjai Raut and Basudeo Raut. The claim of opposite party No. 1 was only as a Hoondadar of the Petitioner and he has simply produced canal receipt for the years 1983, 1984-85, 1986-87, cultivated.
On appreciating of the evidence adduced on behalf of the parties and also documents the learned Magistrate has held that opposite party Nos. 2 to 4 were in possession over the disputed land.
Learned Counsel appearing on behalf of the Petitioners has assailed this order mainly on the ground that for redemption for mortgage land no step was taken by opposite party Nos. 2 to 4 and thus the claim of the redemption by mortgagor become barred by limitation. On this point the learned Magistrate has mentioned that though opposite party Nos. 2 to 4 has stated that Bachan Raut has never executed usufructuary mortgage deed in tavour of Sheopujan Kuer. She has also stated before him that firstly Bachan Raul did not execute a mortgage deed dated 21.4.1934 and even if he had executed it the same stood redeemed by virtue of operation of Section 12 of the Money Lenders Act, 1974. According to the provision of the said Act it is assumed that the principal amount and all dues in respect of usufructuary mortgage shall be deemed to have been fully satisfied.
From the impugned order it appears that the learned Magistrate has not discussed about the execution of usufructuary mortgage and if the same was executed at all after the enforcement of amended Money Lenders Act, 1974. whether steps were taken by the opposite party for the recovery of the mortgage land in the manner prescribed under the rules framed, therein. According to Rule (sic) of the Bihar Money Lenders Act (sic Rules ?) there is a procedure laid down for the recovery of possession of the mortgaged land. It appears that the learned Magistrate has not considered these points which ought to have been discussed and considered.
Accordingly the impugned order dated 2.1.1996 is not sustainable and in hereby quashed. This revision application is allowed. The case is remitted back to the learned Magistrate for a fresh consideration in accordance with law.