MOTILAL JHA Vs. KUBHELA DEVI

JUDGEMENT

(1.) This second appeal is by the plaintiff. A suit for recovery of a sum of Rs. 9,537.79 as principal besides interest and costs was instituted by the plaintiff against the defendants on the basis of a usufructuary mortgage bond dated 1st July 1947 executed in his favour with respect to eight annas proprietary interest in Tauzi No. 781 in Mahal Rupaulia Khurd and 9 Bighas 16 Kathas and 3 Dhurs of lands, including Bakast land, of Tauzi No. 781 and Tauzi No. 780/1 in village Rupaulia Gopi for a consideration of Rs. 15,000/-. According to the plaintiff, he came in possession of the mortgaged property by virtue of the aforesaid document, but in pursuance of the vesting of the Tauzis in the State of Bihar on the 25th January 1955 under the provisions of the Bihar Land Reforms Act, 1950 (hereinafter referred to as the 'Act'), the plaintiff was dispossessed from the mortgage properties. Sometime thereafter he preferred a claim under Section 14 of the Act notifying that to the Claims Officer for the purpose of determining the amount of debt legally and justly payable to him. The plaintiff had made a claim for a sum of Rupees 19,821/8/9, with interest, but the Claims Officer determined the amount to the extent of Rs. 7,622-00 only. On appeal to this Court, being Claim Appeal No. 31 of 1965, this Court allowed the plaintiff's claim at Rs. 10,744/2/11. The State Government determined the amount of compensation payable for the estate of the defendants under the mortgage security of the plaintiff at Rs. 1,206.40 only. The plaintiff adjusted this amount against his claim and filed the present suit for the balance of the claim, seeking a personal decree against the defendants.

(2.) The defendants contested the suit, inter alia, on the following grounds:

(3.) The trial Court decreed the suit. On the first question by committing an error of record, it held that the mortgaged property consisted also tenancy lands and the claim could be enforced against these properties under the ordinary law. On the second question, it took the view that the date from which the period of limitation would begin to run in this case was 22-1-1961, the date when the claim of the plaintiff was finally determined by the High Court and, therefore, the suit was not barred. It accordingly decreed the suit and passed a decree in the form of a preliminary decree granting two months time to the defendants to pay the amount, failing which the amount could be recovered from the properties which were mortgaged and had not vested in the State of Bihar, and if the decretal amount could not be fully satisfied out of those properties, the plaintiff was entitled to recover the same from other properties of the defendants.