JUDGMENT
Rekha Kumari, J.
1. This appeal is directed against an ex parte judgment and decree dated 3-5-197S passed by the 2nd Additional Subordinate Judge, Sitamarhi in Title Suit No. 39 of 1972/83 of 1975 under which he has dismissed the suit without cost
2. The plaintiff-appellant had filed the suit for recovery of possession of the mortgaged land described at the foot of the plaint comprising of a house and agricultural land, and in the alternative for realisation of the mortgage money of Rs. 9000/- and rent with effect from 25-3-1969 to 29-2-1972 at the rate of Rs. 120/- per month and damages, total amounting to Rs. 14,995/- (including the mortgage money).
3. The case of the plaintiff appellant is that the defendant second set (respondent No. 2) Babulal Sah had taken loan, for the marriage of his daughter, from different sources. He had to repay the loans. So, he approached him and took a loan of Rs. 1860/- and executed a Rehan deed on 15-2-1963 in his favour. Subsequently, respondent No. 2 sold the mortgaged land to Most. Kusmi Devi defendant No. 1 (respondent No. 1) and kept the mortgage money in deposit with her. Respondent No. 1, however, could not pay the mortgage money. Thereafter, defendant No. I (respondent No. 1) took Rs. 140/- from the plaintiff-appellant on one occasion, and Rs. 7000/- on another occasion, and executed a rehan deed dated 25-3-1968 for Rs. 9000/- in favour of the plain tiff-appellant and put. him in possession of the mortgaged land and promised to pay the mortgage money tn Baisakh 1377 Fasli. It is further said that after the delivery of the mortgaged property, respondent No. 1 took the house on rent from the appellant at the rate of Rs. 120/- per month.
4. The further case of the plaintiff-appellant is that only a few months after the execution of the mortgage deed in May, 1968, the respondent No. 1 dispossessed the plaintiff-appellant from the agricultural land mortgaged to him, and also stopped paying rent of the house and did not deliver the possession of the house. The plaintiff-appellant, hence, sent a legal notice dated 7-3-1972 to respondent No. 1, but she refused to receive the notice. The plaintiff-appellant, hence, filed the suit.
5. It appears that respondent No. 1/defendant No. 1 appeared in the suit and filed a written statement but subsequently left attending the Court. The suit, therefore, was heard ex parte.
6. The plaintiff-appellant examined three witnesses in support of his case. Among them P.W. 1 is Jagdish Prasad Saraf, the plaintiff-appellant, P.W. 2 Bhola Rai and P.W. 3 Shri Nandan Prasad are formal witnesses and have proved certain documents. The learned trial Court observed that though P.W. 1 has supported his case and his evidence is ex parte, as the mortgage deed was executed on 25-3-1968, in view of Section 12 of the Bihar Money Lenders Act, 1974 (hereinafter referred to as the Act) the mortgage shall be deemed to have been wholly redeemed on expiry of a period of seven years from the date of execution of the mortgage deed i.e. on 25-3-1975, and the claim of the plaintiff-appellant is hit by Section 12 of that Act. It accordingly dismissed the suit on ex parte hearing.
7. The plaintiff-appellant being aggrieved filed this appeal. In appeal also the respondents did not appear. So, the appeal has been heard ex parte.
8. The only submission of the learned Counsel for the appellant is that the provision of the Bihar Money Lenders Act, 1974 applies only when the land is an agricultural land, but in this case the mortgaged land was a homestead land and not an agricultural land and so, Section 12 of the Act would not apply in this case and the appeal is fit to be allowed.
9. At the outset it may be mentioned that whether the mortgaged properly is an agricultural land or homestead land, Section 12 of the above Act is not applicable in this case.
9. The relevant portion of Section 12 of the Act. reads thus:
Notwithstanding anything to the contrary contained in any law or anything having the force of law or in any agreement, the principal amount and all dues in respect of a usufructuary mortgage relating to any agricultural land, whether executed before or after the commencement of this Act, shall be deemed to have been wholly satisfied and the mortgage shall be deemed to have been wholly redeemed on the expiry of a period of seven years from the date of the execution of the mortgage bond in respect of such land and the mortgagor shall be entitled to recover possession of the mortgaged land in the manner prescribed under the rules.
10. Therefore, Section 12 of the Act is applied when the mortgagee is in possession of the mortgaged land for a period of seven years. But, in this case, the mortgage deed (Ext. 1/A) shows that the deed was executed on 25-3-1968 and the suit, alleging dispossession was filed, on 22-4-1972 much before expiry of seven years of the execution of the mortgage bond. Therefore, no question of application of Section 12 of the Act arises in the suit.
11. The point for consideration in this appeal, hence, is whether the appellant has been able to prove that he is entitled to recover possession of the mortgaged land and in the alter native to receive the mortgage money.
12. In this regard, it may be mentioned that though the learned trial Court has stated that P.W. 1 has supported his case the mortgage deed (Ext. 1/A) shows that the mortgage money was due for payment in the month of Baisakh 1377 Fasli i.e. April-May 1970, but there is no evidence at all that the appellant did not pay the mortgage money after the money became payable. P.W. 1 has also not stated in his evidence that he was dispossessed from the suit property and if so, from which date. Therefore, it is not proved that the plaintiff is entitled to recover possession of the mortgaged property or in the alternative to receive the mortgage money.
13. P.W. 1, of course, has stated that he had given the house included in the mortgage property on rent to respondent No. 1 and she did not pay any rent or vacated the house. He has also filed the kerayanama
date sd 27-3-1968 (Ext. 2) executed by respondent No. 1 in support of his evidence. But as he has not stated that the mortgage money was not paid by respondent No. 1 and he was wrongfully dispossessed, he cannot get a decree for recovery of possession in respect of the house also. As regards arrears of rent if any, he is not entitled to receive the same in this suit.
14. In view of the discussions made above, the appellant is not entitled to any of the reliefs claimed for and the appeal is liable to be dismissed.
15. In the result, this appeal is dismissed. There would be no order as to costs.