SURYA GON Vs. SUB DIVISIONAL OFFICER

JUDGEMENT

(1.) In this writ application the land in dispute is comprised in Plots Nos. 439, 606, 611, 632, 2382 and 2391, appertaining to Jamabandi No. 31 of Mauza Hatdhora in the district of Santal Parganas. Two Bhugut bandha mortgages were executed in respect of the six plots by one Panchanan Mahto in favour of Tarpado Gon, brother of the petitioner. The usufructuary mortgages were for a period of six years in accordance with Section 21 of the Santal Parganas Tenancy (Supplementary Provisions) Act, 1949 (Bihar Act XIV of 1940) hereinafter called the "Act". The first mortgage was executed on the 10th of May, 1963, and it was in respect of Plots Nos. 439, 606, 611 and 632. The second mortgage in favour of Tarapado was executed on the 5th of February, 1964. It was in respect of the four plots for which a mortgage had been executed earlier in the year 1963 as also in respect of the other two plots out of the six plots, namely, Plots Nos. 2382 and 2391. The petitioner took a third mortgage on the 29th of December, 1967 in respect of all the six plots. Respondent No. 2 filed an application under Sections 21 and 42 of the Act for eviction of the petitioner on several grounds. The petitioner's case was that the earlier two mortgages executed in favour of his brother, Tarapado, in the years 1963 and 1964 were ineffective and inoperative and Tarapado had not come in possession of the land. The petitioner claimed to have come in possession of the mortgaged land for the first time after the execution of the mortgage in his favour. Learned Sub-divisional Officer, Jamtra, by his order, dated the 27th of May, 1971 has cancelled the sudbharana deed, dated the 29th of December, 1967, executed in favour of the petitioner and has directed restoration of the land of the owner. The petitioner has obtained a rule from this court under Articles 226 and 227 of the Constitution against the respondents to show cause as to why the said order, a copy of which is Annexure "1" to the writ application, be not called up and quashed.

(2.) Learned Sub-divisional Officer has taken the view that the two deeds executed in favour of Tarapado were effective and operative. According to his case made out in another case he had come in possession and thereafter, on the strength of the mortgage, dated the 29th of December, 1967 the petitioner had come in possession of the disputed land. That being so, in the view of the learned Magistrate, the mortgage executed in favour of the petitioner was in violation of proviso (b) to Sub-section (1) of Section 21 of the Act. He has, therefore, directed cancellation of the document as also for restoration of the land to the owner.

(3.) Learned counsel for the petitioner submitted that no order of cancellation of the mortgage executed in favour of the petitioner could be passed under Sub-section (4) of Section 21, or under any other provision of the Act. He also submitted that no order of eviction could be made against the petitioner before the expiry of the period of six years from the 29th of December, 1967, or, in any event, the order directing restoration of the land to the owner, without determining as to who is the owner, is too vague to be sustained.