BHAGWATIA Vs. DEPUTY DIRECTOR OF CONSOLIDATION DEORIA

JUDGEMENT

(1.) HEARD learned counsel for the petitioner Sri S. P. Tripathi and perused the impugned orders passed by opposite parties nos. 1 to 3.

(2.) THE dispute is now confined to plots nos. 427 and 434 of Khata nos. 23 B and 23 C. It is not disputed that Niga was the Bhumidhar of the aforesaid plots in question. He had on 15th January 1974 executed an agreement for sale in respect of the said plots to Rajdeo opposite party no. 6. Subsequently on 14th March 1974 he executed a registered mortgate deed in favour of Tameshwar opposite party no. 4 and the said mortgagee was in possession over the aforesaid two plots.

(3.) THIS decision is clearly distinguishable. In the aforesaid case, as was apparent from the two hand notes executed by the plaintiff in favour of the defendant the latter was put into possession over certain portions of plots in dispute only in lieu of interest and not for the purposes of securing the payment of money advanced as a loan to the plaintiff. The defendant was not given right under the hand notes to get the land sold off for non-payment of loan. The, transaction thus did not amount to mortgage of land. The object of the mortgage is to secure payment of money and the mortgaged property is liable to be sold for non payment of loan. The language used in Section 164 of the U. P. Zamindari Abolition and Land Reforms Act is exacty the same as under Section 58 of the Transfer of Property Act, which defines mortgage. Section 164 of the said Act applied to usufructary mortgages where possession is transferred to the transferee for the purposes of securing any payment of money advanced or to be advanced by way of loan and existing or future debt or the performance of any engagement which may give rise to a pecuniary liability.