S.P.Sinha, J. - (1.)This appeal, by leave, is directed against a judgment and decree passed by 'a learned single Judge of this court in Second Appeal No. 774 of 1964 on 1st February, 1967.
(2.)The judgment passed by the learned single Judge has been assailed on two grounds; (i) the plaintiffs had no right to sue for possession of the land because they had lost that right on the vesting of the estate, and (ii) in any event, the defendants-appellants could not be ousted from possession until the sub-mortgages in their favour had been redeemed. According to the learned counsel for the appellants, the learned single Judge had failed to appreciate the nature of the suit and the relief claimed therein. If the same had been considered in its proper perspective, the suit could not have been decreed.
(3.)Before dealing with the contentions, it will be necessary to state a few relevant facts. The plaintiffs suit was for declaration of title and recovery of possession over 1.92 acres of land, being the southern half of Revenue survey plot No. 752 situate in village Chandaghasi, police station Ranchi Sadar. Admittedly the plaintiffs were the eight annas landlords of the tenure to which the suit land appertained. On partition between the co-sharers, the suit land fell to the exclusive share of the plaintiffs. On the 29th December, 1943, the ancestors of the present plaintiffs executed a usufructuary mortgage bond in favour of Motilal Sao (defendant No. 4), the consideration being a sum of Rs. 7,350. By virtue of the said mortgage, Motilal Sao came in possession of the mortgaged property. On the 18th February, 1955, he created a sub-mortgage in respect of a part of the suit land, that is to say, in respect of 0.96 acre only in favour of defendants 1 to 3. On the 2nd of March, 1955, the tenure of the plaintiffs vested in the State of Bihar in accordance with the provisions contained in Section 4 (a) of the Bihar Land Reforms Act, 1950 (hereinafter referred to as the 'Act'). Thereafter on the 22nd of April, 1955, another sub-mortgage in favour of defendants l and 2 was created by defendant No. 4 in respect of a further area of 0.96 acre of the suit land. The area sub-mortgaged under the two deeds thus together came to 1.92 acres of land. It appears that on the 12th of August 1955, a notice under Clause (g) of Section 4 of the Act was issued against the original mortgagee Motilal (defendant No. 4). It further appears that on service of the said notice under Section 4 (g) of the Act, the said Motilal filed a claim in respect of his mortgage debt, under Section 14 of the Act. The application under Section 14 of the Act was disposed of on 10th of Jan., 1957. It was held that the entire mortgage money had since been satisfied and that nothing remained to be paid to the applicant. This finding was arrived at on calculation of the usufruct from the property utilised by the mortgagee. The plaintiffs' case then is that defendant No. 4 on receiving the notice under Section 4 (g) of the Act for vacating the mortgaged property, put the plaintiffs in possession of it. The plaintiffs, therefore, came into possession of the disputed land. Defendants 1 to 3, however, raised a dispute which ultimately culminated in a proceeding under Section 145, Cr. P. C, The said proceeding was decided in favour of the defendants by order dated 7th September, 1960. Defendants 1 to 3 thereafter dispossessed the plaintiffs. Hence the suit.