K. P. Singh, J. - (1.) THERE are khata nos. 7,22,23,38 & 173 in dispute between the parties. Shorn of unnecessary details the petitioner had claimed 1/2 share in Khata Nos. 22, 23 and 173. The petitioner's name was not recorded over the aforesaid Khatas. His name was recorded over Khata No. 38. Some of the contesting opposite parties had filed an objection for expunction of the name of the petitioner over Khata no. 38. The consolidation officer partly accepted the claim of the petitioner to the extent of 1/4th share in some of the disputed plots. The petitioner's appeal failed before the appellate authority as is evident from the judgment dated 14-10-1969. The petitioner also failed before the revisional authority. Aggrieved by the judgments of the consolidation authorities, the petitioner has approached this Court under Article 226 of the Constitution.
(2.) THIS writ petition was heard and allowed by a learned Single Judge of this Court through his judgment dated 1-4-1980 but the order has been recalled due to the circumstance that the counsel for the opposite party was not heard. Before me, the learned counsel for the petitioner has contended that the consolidation authorities have patently erred in negativing the claim of the petitioner in the plots which were subject matter of a mortgage to Bale Din and Bhulai and over which :the contesting opposite parties Jagar Nath Pal (now represented by his heirs) and father of opposite party nos. 2 and 3 named Chandra Bhushan Pal had got possession in pursuance of a decree in suit no. 14 of 1948. It is note-worthy that the decree in redemption suit was in favour of the aforesaid Jagarnath Pal, Chandra Bhushan Pal and father of tha petitioner, namely Gopal Prasad Pal and father of opposite party no. 5, namely Indra Mani Pal. The learned counsel for the petitioner also suggested that he adopted the grounds and discussions due to which his writ petition was allowed by a learned Judge of this Court on 1-4-1980. The learned counsel for the contesting opposite party submitted in reply that the judgment dated 1-4-1980 has been set aside at the instance of the opposite party, hence the same should not be taken note of while deciding the present writ petition. He also submitted that the petitioner has no claim in the plots which were subject matter of mortgage to Bale Din and Bhulai because the predecessor-in-interest of the contesting opposite parties had redeemed the mortgage and the petitioners and his predecessor-in-interest did not contribute the requisite share in the money paid by the predecessor-in-interest of the contesting opposite parties, hence the petitioner has no claim in the plots which were subject matter of the mortgage. In this connection it has been suggested that as the mortgage was redeemed by some of the mortgagors and they became charge-holder of the share of the other mortgagors, who failed to file redemption suit and also failed to recover possession over their share by contributing their share within time provided by law, hence the petitioner's claim was rightly negatived by the consolidation authorities even in the plots which were subject matter of the mortgage. It has also been suggested that the plots which stood in the name of Yadunath Kunwari as ex-prdprietory tenancy, the petitioner cannot claim any share in the ex-proprietory tenancy of Yadunath Kunwari as he would not be heir entitled to her ex-proprietory tenancy.
(3.) I have considered the contentions raised on behalf of the parties and I have gone through the judgments of the consolidation authorities as well as the judgment of the learned Single Judge dated 1-4-1980. It is noteworthy that the mortgage deed under consideration in the present case is dated 17-3-1920. The Redemption Suit No. 14/48 filed by Jagarnath Pal and Chandra Bhushan Pal was decreed in fovour of the plaintiffs as well as Gopal Prasad Pal, father of the present petitioner and Indra Mani Pal, father of the opposite party no. 5, in the present writ petition. At this stage, it would be better to quote the following pedigree :-(Pedigree omitted-Ed.) In short, the contention of the learned counsel for the petitioner before me is that the petitioner being an heir of a co-mortgagor is entitled to a share in the plots, subject matter of the mortgage to Bale Din and Bhulai and redeemed by Jagarnath Pal and Chandra Bhushan Pal. It has been emphasized that the possession of Jagarnath Pal and Chandra Bhushan Pal over the share of the petitioner would be permissive in nature and the petitioner would be entitled to a share in the plots mortgaged subject to contribution of his share in the money paid by the co-mortgagors who redeemed the mortgage and got possession in the year 1948. It has been contended that on the passing of the Act No. I of 1951, the possession of the mortgagee would be only that of a licensee and the consolidation authorities have patently erred in negativing the claim of the petitioner in the plots which were subject matter of the mortgage in favour of Bale Din and Bhulai.;