JANARDANCHOUDHARY Vs. HRIDYA NARAIN CHOUDHARY

JUDGEMENT

(1.) This is a defendants' second appeal preferred under Section 100 of the Code of Civil Procedure, 1908 (for short the Code) in a suit filed by the plaintiffs-respondents 1 and 2 for declaration that the plaintiffs are in peaceful cultivatory possession of the suit land till mortgage amount is paid to the plaintiffs bv the defendants-appellants under the Government Notification No. S.O. 207 dated 13-2-1981, under Section 12 of the Bihar Money lenders Act, 1974 (for short the Act). Further claim was to restrain the defendants-appellants from disturbing either directly or indirectly the peaceful possession of the plaintiffs over the land in suit. The plaintiffs respondents 1 and 2 brought the suit with the averments that they executed three mortgage deeds in favour of defendants-appellants on 4th November, 1974. la the first and second mortgage deeds the amount was Rs. 2500/- each in respect of an area measuring 42 1/2 decimals of land under Khata No ,5/kb, Khesra No. 711 situate in Village Gokula Jhapra-Kitta, District Bhagalpur and in the other deed the land was under Khata No 5/Ka Khesra No. 711 and other mortgage deed was for a sum of Rs 2,000/-in respect of 28 decimals of land in Mouza Gokula Jhapra-Kitta. District Bhagalpur under Khata No. 5/Kh, Khesra No. 710. On 2-7-1974 two mortgage deeds were executed by the defendants Ist party for a sum of Rs. 9,500/- and Rs. 3,000/-. The plaintiffs came in possession of the land mortgaged and continued in peaceful possession. But in view of the provisions of Section 12 of the Act the plaintiffs respondents are not entitled to the possession of the land mortgaged in respect of usufructuary mortgage as the mortgage was executed more than 7 years ago. The mortgage shall be deemed to have been fully satisfied and redeemed after expiry of 7 years from the date of execution of the decree and the mortgager, the defendants-appellants were entitled to come in possession. The, present suit was filed with the aforesaid reliefs. Subsequently by Notification dated 13-2-1981 (Bihar Gazette Extra No: 201 of 13-2 1981) it was provided that Section 12 of the Act would not apply to mortgagors holding land up to 5 acres. It was averred in the plaint that by virtue of a partition deed (Ext 3) dated 18-10-1964 there was a partition effected in the family and the share of the plaintiffs came to less than 5 acres, as such in view of the Notification dated 13-2-1981 Section 12 of the Act would not apply to the plaintiffs. Hence the reliefs claimed for, be granted.

(2.) The defendants-appellants contested the suit alleging that the suit was filed with a visw to frustrate the provisions of Section 12 of the Act and for that purpose the partition deed was created which was also a fictitious document. In any case the partition deed created a right and title in favour of the plaintiffs and the valuation of the property was more than 100/- and without being registered the deed of partition is in admissible in evidence and the share of the plaintiffs was more than 5 acres of land. Section 12 of the Act shall be operative and further there can not be any estoppel against Statute. The plaintiffs being the money lenders did not maintain the accounts under Section 7 of the Act, consequently they were not entitled to receive the money from the mortgagee and the suit was liable to be dismissed.

(3.) These issues were framed by the learned Subordinate Judge-II, Banka ; Whether the suit as framed was maintainable and whether the plaintiffs have cause of action and whether the right of the mortgages subsists and whether the plaintiffs have maintained accounts as required under Section 7 of the Act and whether the plaintiffs are entitled to be protected under the Government Notification No. S.O. 207 dated 13-2-1981 ? Learned Subordinate Judge dismissed the suit by his judgment and decree dated 30-8-1991.