EKADASI SAHU Vs. STATE OF ORISSA AND OTHERS

JUDGEMENT

(1.) An interesting question of law that arises in this writ application is whether property conveyed under a deed of mortgage by conditional sale can be said to be the property of the mortgagee so as to be included while determining the ceiling of the mortgagee under the provisions of the Orissa Land Reforms Act.

(2.) A ceiling surplus case was instituted against opposite party no. 5 which was registered as O.L.R. Case No. 139 of 1975 and in the said case the disputed property was taken into account. The petitioner objected to the inclusion of the disputed property on the ground that the petitioner was the mortgagor and it is the petitioner who is in possession of the land which has been upheld in a proceeding under section 145 of the Code of Criminal Procedure and, therefore, the property could not have been included while determining the ceiling surplus in the hands of the mortgagee. The Revenue Officer rejected the said objection. The order of the Revenue Officer is annexed as Annexure-1. The petitioner preferred an appeal. The appellate authority set aside the order of the Revenue Officer and remanded the matter with a direction to initiate a proceeding against the petitioner. The said order has been annexed as Annexure-2. Opposite party No. 4 challenged the same in revision and the Additional District Magistrate interfered with the order of the appellate authority and allowed the revision as per his order, annexed as Annexure-3. The petitioner moved this Court in O.J.C. No. 882 of 1983 challenging the order of the revisional authority. This Court being of the opinion that the revisional authority has not considered the terms and conditions of the deed for arriving ata conclusion, the conclusion that it was a mortgage by conditional sale cannot be sustained and on the aforesaid finding, the matter was remitted back to the revisional authority. The revisional authority thereafter,disposed of the revision by the impugned order dated 26.12.1987, annexed as Annexure-5 and came to the conclusion that the transaction was a martgage by conditional sale and since the mortgager has not taken steps for redemption, the right, title and interest over the property passed on to the mortgagee and consequently, the property should be taken into account while determining the ceiling of the mortgagee. It is this order which is being assailed in this writ application.

(3.) Learned counsel for the petitioner contends that under section 39 of the Orissa Land Reforms Act, possession of a mortgagee is deemed to be land hold by the mortgagor and the right of mortgagor to redeem the mortgaged property has not been touched by the Orissa Land Reforms Act and further in a case of mortgage by conditional sale, it is only a decree for foreclosure which extinguishes the mortgagor's right to redeem and makes the mortgagee an absolute owner of the property from the date of the decree. In that view of the matter, the revisional authority has committed gross error of law in coming to the conclusion that the property in question can be included in determining the ceiling of the mortgagee.