SHIV LAL Vs. BOARD OF REVENUE

JUDGEMENT

(1.) THIS is a petition under Articles 226 and 227 of the Constitution of India challenging the order dated 25.2.1987 (Annexure P-8) of the respondent No. 1 Board of Revenue by which order dated 29.4.1980 (Annexure P-7) of the respondent No. 2 Joint Registrar, Cooperative Societies has been set aside.

(2.) RESPONDENT No. 5 Deoman was Bhumiswami of Khasra No. 657 area 6.68 acres of land of village Chhindwara. He borrowed some money in the year 1974 from respondent No. 4 Brahatakar Shahkari Salch Samiti Maryadit, Chhindwara and created charge upon his land under section 41 of the M.P. Cooperative Societies Act, 1960. He sold 1.50 acres area out of Khasra No. 657 to the petitioner by registered sale-deed dated 29.10.1974 and delivered possession to him. This land was mutated in the name of the petitioner in revenue records. It was given Khasra No. 657/1. The petitioner came to know regarding the auction of the lands by the respondent No. 3 Recovery Officer. He deposited an amount of Rs. 6078.98 paise during the period 20.3.1976 to 20.5.1977. The proclamation of sale shows that an amount of Rs. 5110.55 paise only was due from the borrower. The land was sold in auction on 17.1.1978 to respondent No. 6 Suresh Soni and the sale was confirmed on 28.2.1978. The petitioner filed an appeal under section 77 of the Act before the respondent No. 2. The sale was set aside by order dated 29.4.1980. The case was remanded to the respondent No. 3 with the direction to check the account of the respondent No. 5 and if necessary to hold the-auction afresh. Against this order the respondent No. 6 filed an appeal before the Board of Revenue which passed the impugned order on 25.2.1987 setting aside the order dated 29.4.1980.

(3.) AFTER hearing the learned counsel for both the sides, this Court is of the opinion that both the grounds on which the Board of Revenue set aside the order of the Joint Registrar are legally untenable. Even after the creation of charge or mortgage, the mortgagor continues to be Bhumiswami of the land, and, he can transfer the right of ownership to a third person on whom the charge or. mortgage would be binding. The sale would be subject to charge or mortgage. The repayment of the loan remains secured. That is borne out from section 58 of the Transfer of Property Act. In case of sale the ownership is transferred the vendee gets the right to redeem the mortgage. As per section 41(3) of the M.P. Cooperative Societies Act, 1960, any alienation made in contravention of the provisions of sub-section (2) shall be void ' 'as against any claim of the society" in respect of the loan taken from it under this section. Thus, the whole of the alienation is not rendered void. It is void only against any claim of the society in respect of the loan. The petitioner does not challenge the right of the Society in this case to recover the loan from him. Therefore, the first ground on which the Board of Revenue set aside the order of the Joint Registrar cannot be upheld.