GOBARDHAN JHA Vs. COMMISSIONER BHAGALPUR DIVISION

JUDGEMENT

(1.) This writ petition is directed against the order dated 2nd November 1992 of the respondent No. 1, the Commissioner, Bhagalpur Division, Bhagalpur.

(2.) The case of the petitioner is that he mortgaged the properly in dispute in favour of respondent No. 4 on 14.12.1976. Although he had mortgaged the property in favour of respondent No. 4, the husband of respondent No. 4 taking advantage of his illiteracy incorporated a clause to the effect that in the event of his failure to repay the entire amount by 1st Jeth 1386 Fasli this deed will be treated as a sale deed. It was further claimed that admittedly he received only a sum of Rs. 2000/- from the respondent for one bigha land while the market value of the property was Rs. 25,000/- to 30,000/- per bigha and, therefore, the question of his selling the property did not arise. In view of Section 12 of the Bihar Money Lenders Act, 1974 he became entitled to regain possession of the property in dispute on expiry of seven years period on 12.10.1983 but the respondent No. 4 did not hand over possession of the property to him and, therefore, he sent a notice to the respondent No. 4 for handing over possession but with no result. He, accordingly moved an application under Section 12 to the respondent No. 2, the Land Reforms Deputy Collector, Sadar Bhagalpur for recovery of possession of the property. The respondent No. 4 contested the application on the ground that in view of the fact that it was not usufructuary mortgage Section 12 was not attracted. In other words, according to her it was a case of mortgage by conditional sale which was not covered by Section 12. The respondent No. 2 vide his order dated 3.12.1990 rejected the application of the petitioner on the ground that as it was not an usufructuary mortgage provisions of Section 12 were not attracted. The petitioner filed revision to the respondent No. 1 which was dismissed on 2.11.1992. Hence this writ petition.

(3.) Heard the learned Counsel for the parties and perused the record.