BIBI JAITUN Vs. URMILA KUAR

JUDGEMENT

(1.) A short point which arises in this revision is whether a suit for redemption of mortgage and claim of mesne profit will abate under S.4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act. (hereinafter referred to as the "Act").

(2.) The plaintiff filed title suit No. 195/79 of 1967 in the Court of the Munsif, West Muzaffarpur for redemption of a mortgage deed and also made a claim of mesne profit against the opposite party, which was decreed on 28-9-1974. The defendants made an appeal before the District Judge, Muzaffarpur, which was registered as Title Appeal 106/74, but the same was also dismissed. In view of the points raised for consideration by this Court, it is not necessary to enumerate the facts of the case. The plaintiff-petitioner after obtaining delivery of possession in Execution case No. 4/1 of 1975 filed an application before the learned Munsif for ascertainment of the mesne profit from the date of Dakhal debani. While proceeding for mesne profit was going on, the defendants" opposite party made an application to the Court that under S.4(c) of the Bihar Consolidation Act the proceeding in question has abated. The learned Munsif on hearing the parties by order dt. 1-7-78 held that the proceeding relating to the ascertainment or the mesne profit stood abated under S.4(c) of the Act.

(3.) Sri Rama Kant Verma appearing for the petitioner has submitted that the learned Munsif has erred in his finding that the proceeding stands abated on account of S.4(c) of the Act. Question of title or possession was not in issue in the suit. It was a suit for redemption of mortgage and claim for mesne profit was rather a consequential relief. Section 4(c) admittedly is not applicable in the redemption suit and question of abatement of the proceedings for mesne profit does not arise. The learned Munsif, I find in the impugned order, has observed that it has been well established by this High Court that a suit for mesne profit shall also abate. The learned Munsif has not quoted any decision while stating that it is the well established decision of this Court. Obviously the learned Munsif is in error. In a suit for recovery of possession if there is a consequential relief for mesne profit and both the issues being connected to each other, question of abatement under S.4(c) may come up, but not in a redemption suit and in the instant case the proceedings for mesne profit do not abate under S.4(c) of the Act.