JANAK SAHI Vs. JAMUNA SHAHI

JUDGEMENT

(1.) This application hi revision is directed against an order dated 28-5-1977 passed by the Munsif, East Muzaffarpur, in a suit for redemption holding that the suit stood abated under Section 4 (c) of the Consolidation of Holdings and Prevention of Frag- mentation Act, 1956 (hereinafter to be called as "the Act"

(2.) The plaintiffs instituted a suit against the defendants-first party for redemption of a mortgage bond dated 23-6-1947 executed by one Bigan Singh, father of the defendants-second party, in favour of defendants-1sf party. The subject-matter of the mortgage was lands of plots Nos. 204 and 231 of Khata No. 89. The plaintiffs' case is that they purchased the suit lands from the defendants-second party by virtue of a registered sale deed dated 13-12-1972. The mortgage amount of Rs. 400/- was left with the purchaser for redemption of the mortgage. It was alleged that the plaintiffs after their purchase, tendered the amount to the defendant-first party which having been refused, was deposited in court under Section 83 of the Transfer of Property Act. The defendant-first party did not withdraw the amount. Hence the plaintiffs filed a suit for redemption and recovery of possession and mesne profits.

(3.) During the pendency of the suit the defendants, besides filing written statement denying the plaintiffs' claim, filed a petition under Section 4 (c) of the Act alleging that the lands covered by the suit, lay in the area where the consolidation proceeding is in progress and prayed that it should be held that the suit had abated, inasmuch as, the suit was for declaration and adjudication relating to interest in land. It was opposed on behalf of the plaintiffs who filed a rejoiner contending that the lands covered by the mortgage admittedly belonged to Bigan Singh who had executed usufructuary mortgage in favour of the defendants-first party. The plaintiffs having purchased the suit lands from the mortgagor is entitled to redeem the said mortgage. To such a suit. Section 4 (c) of the Act was not applicable. Thus, the question arose whether a suit for redemption is covered by the provisions of Section 4 (c) of the Act. The learned Munsif heard the parties on this question and relying on the case of Ram Adhar Singh v. Ram Roop Singh, (AIR 1968 SC 714) held that the suit had abated. Being aggrieved by the said ordei the plaintiffs have come up in revision.