BHARAT BAITHA Vs. STATE

JUDGEMENT

(1.) HEARD learned counsel for the petitioner and the counsel appearing for respondent no. 5

(2.) THE land in dispute relates to revisional Plot No. 206 area 18 decimals and Revisional Survey Plot no. 201 Area 4 decimals situated at village Rajkhand P.S. Goroul District Vaishali. The case of the petitioner is that he is maternal great grand son of one Munar Baitha son of Bhaju Baitha. Bhaju Baitha has one daughter Etwaria and one son Monar Baitha. Monar Baitha died issueless leaving behind his only sister Etwaria. Petitioner is the maternal grand son of Monar. Monar Baitha was alive at the time of revisional survey operation which took place in the year 1970 and his name was entered in the revisional survey khatian as a tenant. After his death petitioner came in possession of the land. During consolidation proceeding he filed a petition under Section 12 of the Bihar Consolidation of Holdings and Fragmentation Act, 1956 (hereinafter referred to as the Act) in respect of his right, title and interest over the land which was decided in his favour on 26.3.1986 and his name was recorded in the register of the land as well as in chak register. He remained in peaceful cultivating possession of the land. Subsequently the respondent no. 5 filed an appeal before the Deputy Director of Consolidation being case no. 214 of 1988 which was dismissed by a speaking order dated 21.12.1989 affirming the order of the Consolidation Officer as the respondent no. 5 failed to make out a case for recording his name either during revisional survey operation or during consolidation proceeding. Against the order passed by the appellate authority the respondent no. 5 filed revision before the Director which was numbered as Revision Case No. 126 of 1990 which was allowed by order dated 3.10.1994 by Principal Consolidation Training Institute, Patna. The petitioner is aggrieved by this order and has challenged this order in the writ application.

(3.) THE respondent no. 5 filed an application for mutation of his name on the basis of registered bechinama and the mortgage deeds. The case was registered as Mutation Case No. 1269 of 1981, At that very time the petitioner Bharath Baitha also filed a petition claiming himself to be the heir of Late Monar Baitha. He filed an application under section 12. of the Money Lenders Act, 1974 for redemption the mortgaged land. This application was numbered as Mortgage case no. 3/91. Both the cases were decided by the Circle Officer by a common order dated 15.4.1981. He dismissed the claim of the petitioner under section 12 of the Money Lenders Act, 1974 on the ground that the case was barred by limitation. Redemption of mortgage could be done only up to 30 years under the new Limitation Act. The Bihar Money Lenders Act, 1974 was published in Bihar Gazette on 25.7.1993 on which date the Money Lenders Act, 1974 came into operation but on that date the mortgage was not subsisting under the new Limitation Act. The redemption could have been done only up to the year 1970. The Anchal Adhikari held that as the Money Lenders Act came into force when the mortgage was not subsisting, therefore, Money Lenders Act, 1974. is not applicable in the present case. Against the dismissal of the mortgage case no. 3 of 1981 the petitioner filed an appeal bearing Mortgage Appeal No. 32 of 1989 before the D.C.L.R. Hajipur which was dismissed by order dated 26.3.1990 on the ground that the period of redemption had expired.