SITARAM HARPRASAD Vs. CHHATE GAJJU

JUDGEMENT

(1.) THIS is a petition under Article 227 read with Article 226 of the Constitution of India in the matter of Madhya Pradesh Anusuchit Jan Jati Rini Sahayata Adhiniyam, 1967 (hereinafter referred to as the Act) and in the matter of order dated 30.12.1976 for delivery of possession of land in favour of non -petitioner No.1 passed by the non -petitioner No.3 in file No. 125/76 -77 and upheld by non -petitioner No.2 in file No. 5/76 -77 -a decision which was given in revision preferred against the order of non -petitioner No. l.

(2.) NON -petitioner No.1, by a registered sale -deed dated 18.8.1968, sold to the petitioner 1/3rd share in agricultural holding in all measuring 15.24 acres of land assessed to land revenue of Rs. 29.45 situated in village Dongarpur, Tahsil Datia. The sale -deed is Annexure P/1. Non -petitioner No1, on 6.8.1976 applied to non -petitioner No.3 vide Annexure -2 for getting back the possession of the land sold off with the following allegations: (a) The transaction was a mortgage with conditional sale and evidenced by other independent document. The agreement is for resale. It says that in case the purchaser pays price within four years as mentioned in the document, the property will be resold, to non -petitioner No.1. The petitioner is in possession of the property for the last so many years. It was submitted by non petitioner No.1 that by operation of law, the debt will be deemed to have been extinguished and, therefore, he is entitled for the possession of the property. All these allegations were denied by the petitioner is reply, after taking evidence, non - petitioner No.3 allowed the petition. Against that order, a revision was preferred, but, the order of non -petitioner No.3 was upheld. Aggrieved by it, this petition is filed.

(3.) THE reply to these submissions made by the learned counsel for non -petitioner No.1 is that the Court had jurisdiction to entertain the application and as soon as the petitioner belongs to the Anusuchit Jan Jati and if he alleges in his petition relation that of a creditor and a debtor, then the Court gets jurisdiction to decide the matter. Regarding the second objection, it was submitted that the Court had jurisdiction to reopen the transaction, then, it can go to the root of the transaction and decide what was the idea in the mind of the two parties when they entered into the transaction The Court bas a right to see the mutual relationship between the parties when the transaction was entered and, therefore, the Court has a right to decide whether the transaction entered into is a mortgage or a sale. In the alternative, it was submitted that if the Court comes to the conclusion that the transfer of property which is termed as a sale, if the property transferred ill a collateral security for the amount mentioned in the transaction, then the Court has a right to decide the respective rights of the parties. Regarding the order of giving back the possession the submission of the learned counsel is that if the Court comes to the conclusion that the relationship of mortgagor and mortgagee has come to an end, then the Court has inherent power to order delivery of possession to the mortgager. He further submits that as soon as the mortgage comes to an end, the mortgagee has no right to keep the possession with him depriving the mortgagor thereof and, therefore, the order of handing over back the possession is legal and valid.