JUDGMENT
K.K. Dutta, J.
1. The suit out of which the present appeal arises was instituted by the present Respondent No. 1 for recovery of possession of 4.78 acres of land appertaining to Khata nos. 1. 15 and 3 of village Rampur, Kishunpur, Aiaipur alias Kathanpura in the district of Patna with a further prayer for recovery of past mesne profits amounting to Rupees 3871/10/- as well as future mesne profits. There was an alternative prayer for recovery of a sum of Rs. 3000/- being the amount for which the disputed property had been mortgaged in favour of the plaintiff along with some other properties and a further sum of Rs. 769/8/- as interest thereon.
2. According to the admitted case of the parties, defendant No. 1 Bibi Salma was the proprietress of tauzi No. 10106 to which the aforesaid lands appertained and she had executed a zarpeshgi deed in favour of the plaintiff on 29-1-1943 with respect to three annas and odd share in this tauzi. After execution of this mortgage deed, the plaintiff duly came into possession of the mortgaged property along with the aforesaid lands which were bakasht lands. The plaintiff’s case further was that in the year 1361 (sic) fasli, he had duly grown paddy on these lands as in the previous years, but subsequently in Magh 1352 fasti, the defendants in collusion with one another forcibly cut away the paddy crops grown on these lands and thereby he was dispossessed from these lands. It may also be mentioned here that defendants 2 and 3 are the sons of defendant No. 1. Defendant No. 4 was alleged to be the Mokhtaram of defendant No. 1 and the original defendant No. 5 Ram Kishun Dusadh was alleged to be a Gorait of defendant No. 1 and defendants 6 and 7 are sons of original defendant No. 5. The remaining defendant, that is, defendant No. 8 is not alleged to have any direct connection with the other defendants but he is a resident of village Kathanpura where the lands are situate. On the above allegation regarding dispossession of the plaintiff from the aforesaid bakasht lands, the aforesaid suit was instituted claiming the reliefs already referred to above.
3. Two separate written statements were filed in the suit by defendants 1 to 3 and defendant No. 6 respectively. Defendants 1 to 3 totally denied the allegation of the plaintiff about the cutting away of the paddy of the aforesaid lands by them in collusion with the other defendants in Magh 1352 fasli and about the alleged dispossession of the plaintiff from these lands. According to them, defendants 2nd and 3rd parties, that is, defendants 5 to 8 are men of the plaintiff himself and the allegations of the plaintiff regarding cutting away of the paddy crops and dispossession are totally false and the lands were still in possession of the plaintiff himself. The case of defendant No. 6, on the other hand, was that the lands in suit were never in possession of the plaintiff and he himself claimed to be in possession of a portion of some of these plots by virtue of alleged settlement with and purchases by his father Ram Kishun Dusadh. It appears, however, that although defendant No. 6 had filed written statement he gave up contest in the suit while the hearing was proceeding and, thereafter, the same was contested by defendants 1 to 3 alone.
4. The suit was originally heard by Shri Murlidhar Prasad, Munsif of Bihar, and as per his judgment dated 29-11-1960, he accepted the case of defendants 1 to 3 about defendants 2nd and 3rd parties being the plaintiffs men and being in collusion with him and about the allegation regarding cutting away of the paddy crops and dispossession of the plaintiff from the suit lands as being false. The suit was dismissed in accordance with these findings. The plaintiff thereon preferred an appeal, namely, T. A. 6/5 of 1961, which was heard by Shri M. A. Sattar, Additional Subordinate Judge and as per his judgment dated 27-7-61, the learned Subordinate Judge set aside the findings of the trial Court and remanded the suit for rewriting the judgment according to law in accordance with the directions given by him. The suit was thereafter heard again by the same Munsif, namely, Shri Murlidhar Prasad and as per his judgment dated 15-9-61, he again dismissed the suit on the finding that the version regarding dispossession set up by the plaintiff was false. The plaintiff thereon again preferred an appeal, which was heard by Shri D. N. Sinha, Subordinate Judge, Bihar Sharif.
As per his judgment dated 19-1-1963, the learned Subordinate Judge came to the finding that it was unnecessary to enter into the question as to whether the plaintiff had been dispossessed from the bakasht lands or not as, according to him, in view of the provisions of Section 68 (1) (b) of the Transfer of Property Act, the plaintiff was entitled to recover the entire mortgage amount irrespective of the alleged dispossession from the aforesaid lands in view of the fact that a portion of the mortgaged property had been lost to the mortgagee on account of vesting of the Estate in the State of Bihar under the Land Reforms Act. He accordingly allowed the appeal and decreed the plaintiff’s claim for recovery of the principal amount of the mortgage money with the direction that on failure of the defendants to pay the same within six months, the plaintiff would be entitled to realise the same
by sale of the bakasht lands. An appeal
was thereon preferred by defendant No. 1
in this court
This appeal, namely, S. A. No. 291 of
1963 (Pat) was disposed of as per judgment of this court dated 19-7-1968 and
it was held that the provisions of Section 68 (1) (b) of the Transfer of Property Act were not applicable to the
facts of the present case, as after vesting of
the Zamindari in the State of Bihar, the
plaintiEf had not given the mortgagor
any opportunity for providing further
security to render the whole security
sufficient. The judgment and decree of
the lower appellate court were accord
ingly set aside and the case was remand
ed back to the lower appellate court for
a fresh decision after deciding the ques
tion as to whether the plaintiff’s case
regarding the alleged dispossession from
the bakasht lands in question was
correct.
5. After this remand order, the appeal was heard afresh by Shri N. Ojha, Subordinate Judge, Bihar Sharif. As per his judgment dated 9-1-1966, this subordinate Judge has accepted the plaintiff’s case regarding cutting away of the paddy crops from the aforesaid lands in Magh 1352 fasli by the defendants in collusion with one another and about dispossession of the plaintiff from these lands by the defendants as correct. In accordance with this finding, he has held that the plaintiff is entitled to a decree for recovery of the mortgage money together with interest thereon from the date of dispossession. The appeal was accordingly allowed and defendant No. 1 was directed to pay the mortgage money with interest at 9 per cent per annum from the date of the alleged dispossession, within six months of the decree. It was further directed that on failure to pay the amount, the plaintiff, would be entitled to realise the same by putting the mortgaged property to sale. Future interest had also been allowed from the date of the preliminary decree.
6. The present appeal has thereon preferred by original defendant No. 1 alone as against the above judgment and decree. Defendant No. 1 has, however, died during the pendency of the appeal and thereon her two sons, namely, defendants 3 and 4, who were impleaded as Respondents 2 and 3, were substituted in her place along with her daughter and these two respondents have been transposed to the category of appellants.
7. The finding of the lower appellate court accepting the plaintiff’s case regarding cutting away of the paddy crops by the defendants from the lands in suit in Magh 1352 fasli and about dispossession of the plaintiff from the lands by the defendants in collusion with one another is a pure finding of fact. It was, however, contended on behalf of the appellant that in arriving at this finding, the learned Subordinate Judge has committed some errors of record. In this connection, the first submission was that the learned Subordinate Judge has considered P. W. 2 to be an eye witness on the point of alleged dispossession, although he had himself admitted in cross examination that he had merely heard about the dispossession. I find, however, that there is no merit in this contention. So far as the evidence of this witness is concerned, the matter has been elaborately discussed by the learned Subordinate Judge and as pointed out by him. the statement as made by this witness about having heard about the dispossession really relates to the dispossession of the plaintiff from some lands other than the lands in suit and the witness had specifically mentioned about having actually seen the dispossession so far as the lands in suit are concerned. I may add that the relevant portion of the statement as made by this witness was read over before me at the time of hearing of the appeal and I fully agree with the view taken by the learned Subordinate Judge that the statement of this witness about having heard about the dispossession relates to some other lands and not the lands to which the present suit relates.
8. It was next urged that the learned Subordinate Judge has wrongly relied upon the statement of P. W. 4 regarding the alleged dispossession as, according to this witness, he had seen only one of the plots and he did not claim to have been present at the time of dispossession. It, no doubt, appears that this witness had admitted that he had seen only one of the plots which, according to him, is situate by the side of the road on which he passes. But. according to the evidence of this witness, this plot comprises an area of about 3 acres and it transpires that one of the suit plots actually covers an area of 3.33 acres and thus constitutes the major portion of the total area of 4.78 acres, covered by all the plots in suit. He, no doubt, did not claim to be present at the time of the actual dispossession but has stated about having found the plaintiff to be in possession formerly and to be out of possession since 5 or 6 years. His evidence was thus quite relevant on the question as to whether the plaintiff had been dispossessed from the lands or not, and the contention that the learned Subordinate Judge had wrongly relied upon his evidence is thus quite untenable.
9. It was next contended that some of the statements as made by the plaintiff himself during his examination in court are inconsistent with his case regarding alleged dispossession. No such inconsistency, however, could be pointed out by learned counsel at the time of hearing of the present appeal.
10. It would thus appear that there Is no merit whatsoever in the contention that the aforesaid finding of fact as arrived at by the learned Subordinate Judge is not based upon the evidence as adduced in this case or that it is based upon any misconstruction of the evidence on record. As such, this finding cannot be assailed in the present appeal.
11. The next point that was urged on behalf of the appellants is that the present suit itself is barred in view of the provision of Section 4 (d) of the Land Reforms Act which runs as follows:
“No suit shall lie in any civil court for the recovery of any money due from such proprietor or tenure-holder the payment of which is secured by a mortgage of, or is a charge on, such estate or tenure and all suits and proceedings for the recovery of any such money which may be pending on the date of vesting shall be dropped.”
It was contended on basis of this provision that the mortgaged property having vested in the State of Bihar in accordance with the provision of this Act, it was not open to the plaintiffs to bring any suit for recovery of any amount due from the mortgagor which was secured by mortgage of the estate. The effect of the provisions as incorporated in Section 4 (d) has been the subject of consideration in a number of cases of this court as well as the Supreme Court and while dealing all the matter, various other sections of the Act, namely, Sections 6, 14, 16 and 25(5) etc. have also been considered. In this connection, reference may be made to the Full Bench decision of this court In Sukhdeo Das v. Kashi Prasad Tiwari, AIR 1958 Pat 630 in which it was held as follows:
“The effect of Section 4 (d) read with sections 3 and 6 of the Act is not to destroy the mortgage in its entirety, but only with respect to that part of the estate which has vested absolutely in the State and no interest therein is left with the mortgagor-proprietor or tenure-holder. In other words, the mortgage remains operative so far as the lands covered by the provisions of Section 6 are concerned as also the lands not coming within the mischief of the Act such as the original raiyati lands.”
It was further held in this case that the bakasht lands of the proprietors which were in their khas possession did not vest in the State, as under the provision of Section 7, even after the vesting, a proprietor was entitled to retain possession of these lands as a settlee under the State, It was accordingly held that it was open to the mortgagee to bring a suit for realisation of his mortgage dues by proceeding against such bakasht lands in spite of the provision of Section 4 (d). It was, however, added that the mortgagee has to elect between his remedy as provided by Section 14 of the Land Reforms Act, namely, by filing an application before the Claims Officer for determination of the amount due to him and the remedy available through the civil court, namely, enforcement of his claim through the civil court.
In another Full Bench case of this court, namely, the case of Sidheshwar Prasad Singh v. Ram Saroop Singh, 1963 BLJR 802 = (AIR 1963 Pat 412), the views expressed in the earlier Full Bench case, referred to above, were approved. It was held that in spite of the vesting of the zamindari in the State, some interest was left with the mortgagor landlord in the bakasht lands appertaining to the Zamindari in accordance with the provision of Section 6 of the Act and the mortgagee Is entitled to follow that property, namely, the bakasht lands and enforce the mortgage security against that property, on the ground of accession to the mortgaged property, if not on the ground of substituted security. In this case also, the view expressed in the earlier case that the mortgagee was bound to elect as to whether he would proceed with the remedy provided under Section 14 or the remedy of enforcing his claim through civil court, was affirmed.
In another case of this Court, namely, the case of Raghubir v. Basudevanand (1953) ILR 32 Pat. 581, the Court held that Section 4 (d) is not applicable to a case where money is secured by a mortgage or charge on estates, some of which have been notified under Section 3 of the Act and the others are not notified. It was held that in such cases, Section 4 (d) will be a bar to the suit or execution proceedings so far as the vested estates are concerned and the mortgagee is entitled to prosecute his suit or execution proceeding as regards the estates or portions of estates which are not vested in the State. Reference may now be made to the decision of the Supreme Court in Krishna Prasad v. Smt. Gouri Kumari Devi, 1962 BLJR 532 = (AIR 1962 SC 1464). This case was proceeded with on the footing that the entire property covered by the mortgage had vested in the State. The mortgagee, who had obtained a mortgage decree prior to the vesting, had filed, after vesting of the Zamindari, an execution case for realisation of his dues by proceeding against some properties which had not been mortgaged and had not vested in the State. After referring to the aforesaid provisions of the Act, the Court held as follows:
“The scheme of the relevant provisions of the Act to which we have already referred unambiguously suggests that where the whole of the mortgaged property is an estate, certain consequences follow. The decree holder has to make a claim, the claim has to be enquired into by the Claims Officer, the amount due to the decree holder has to be determined by the Claims Officer and the amount so determined has to be paid to the decree holder from out of the compensation money payable to the judgment debtor. Having regard to the said scheme, it is difficult to confine the application of Section 4 (d) only to execution proceedings in which the decree holder seeks to proceed against the estate of the debtor. In fact, an execution proceeding to recover the decretal amount from the estate which has already vested in the State, would be incompetent because the said estate no longer belongs to the judgment-debtor. That being so, we are satisfied that on the facts of this case, the High Court was right in holding that the application made by the appellants to execute the decree against the respondent by proceeding against her non-mortgaged properties is incompetent at the present stage. The amount due to the appellants under the decree in question has been already determined by the Claims Officer and the appellants must first seek to recover that amount as provided by the relevant provisions of the Act before they proceed to execute the personal decree.”
(Vide page 538 (of BLJR) = fat p. 1470 of AIR SC) The court further held that it was unnecessary to consider in this case the correctness or otherwise of the view taken by the Patna High Court in the case of (1953) ILR 32 Pat 581 referred to above, that Section 4 (d) of the Act is not applicable where money is secured by a mortgage or charge on estates, some of which have been notified under Section 3 of the Act and the others are not notified. It was similarly held that it was unnecessary to consider in this case the correctness or otherwise of the view taken by the Patna High Court in the Full Bench case of AIR 1958 Pat 630, referred to above, that the mortgagee is entitled to proceed against the bakasht lands comprised in the estate for recovery of the mortgage dues. In a subsequent decision of the Supreme Court in Raj Kishore Prasad Narayan Singh v. Ram Pratap Pandey, AIR 1967 SC 801, the Court referred to its earlier decisions in the cases of 1962 BLJR 532 = (AIR 1962 SC 1464) and Sailendra Narayan v. Jagat Kishore, AIR 1962 SC 914, and following observations have been made in this connection:
“This Court, again, after referring to the various provisions of the Act, held that the scheme of the Act postulates that where the provisions of the Act apply, claims of creditors have to be submitted before the Claims Officer and that the claimants have to follow the procedure prescribed under the Act. This Court has also held that the creditors cannot avail of any remedy outside the Act by instituting a suit or any other proceeding in the court of ordinary civil jurisdiction.” (Page 805).
The Court further held as follows:
“From the principles laid down by this Court in the above two decisions, it follows that where the whole of the property mortgaged is an estate, there can be no doubt that the procedure prescribed by Chapter IV has to be followed, in order that the amount due to the creditor should be determined by the Claims Officer and the decision of the Claims Officer or the Board has been made final by the Act.” (Page 805).
12. Another question which the court considered in this case is as to what would be the position, when a mortgage comprises not only properties which have vested in the State under the Act but also takes in other items of properties which are outside the purview of the Act. In this connection, the Court referred to the view taken by the Patna High Court in the Full Bench case of AIR 1958 Pat 630 referred to above, that if there are other properties comprised in the mortgage which had not vested in the State, the Act does not say that those properties will not be available for recovery of the mortgage money and held as follows:
“So far as this observation is concerned, in our view, that seems to be correct having due regard to the provisions of the Act.”
The Court, however, disagreed with the view expressed in this Full Bench case as well as the subsequent Full Bench case of 1963 BLJR 802 = (AIR 19G3 Pat 412) that the mortgagee in such a case is bound to elect as to whether he would proceed with the remedy as provided under Section 14 or the remedy of enforcing his claim through the civil court. It however, agreed that so far as the claims relating to properties which are vested in the State are concerned, the procedure as indicated in the Act will have to be followed and Section 4 (d) will be a bar to a suit or an execution proceeding in respect of vested estates. The following observations were made in this connection:
“The Act, so far as we can see, gives jurisdiction to the authorities concerned only in respect of properties, which have vested in the State, and the claims that are filed and adjudications made by the authorities concerned, under the Act, can only be with reference to estates that have vested in the State. In our opinion, the prohibition contained in Sections 4 (d) and 35 of the Act must also relate only to matters which can form properly the subject of a claim or an adjudication under the Act.
We are further of opinion that, while in respect of the estates, which have vested in the State under the Act, the mortgagee will be bound to have recourse to the procedure laid down in the Act, so far as his mortgage takes in other properties, his right to enforce his claim under the ordinary law has not been, in any manner, infringed or taken away by the Act. If that is so, it follows that in this case the appellant, notwithstanding the fact that he had filed a claim under Section 14 of the Act, with reference to properties which have vested in the State, is entitled to avail himself, of any other remedy open to him in law, to enforce his claim as against the non-vested properties comprised in the mortgage.” (vide p. 807)
13. It is manifest that in view of these decisions if a mortgage comprises some properties which have vested in the State and some which have not vested, it is open to the mortgagee to realise his dues by proceeding against the mortgaged properties which have not vested in the State by bringing a suit or a proceeding in the civil court in spite of the provisions of Section 4 (d) of the Act, even if he has taken action under Section 14 by filing a claim before the Claims Officer and the view expressed by the Patna High Court that he is bound to elect whether he would avail of the remedy under Section 14 or the remedy through civil court stands overruled. This section however, completely debars the institution of any suit when the entire property covered by mortgage has vested in the State.
It also appears that according to the Full Bench decisions of this court, the bakasht lands in khas possession of a proprietor could not be held to have vested in the State in view of the provision of Section 6 and, as such, in accordance with the above principles, the mortgagee is entitled to enforce his claim by proceeding against such properties and Section 4 (d) would not constitute as a bar against the institution of such a suit. It transpires, however, that this view, as held bv the Full Bench decisions of this Court, has since been overruled by the Supreme Court by its recent decision in the case of Shivashankar Prasad Sah v. Baikunth Nath Singh, Civil Appeal No. 368 of 1966 (SC) which has been decided on 7-3-1969 and which does not appear to have been reported as yet. (Since reported in AIR 1969 SC 971). In this case, the question arose as to whether the bakasht lands in possession of a proprietor could not be held to have vested in the State in order to enable a mortgagee of an estate to enforce his mortgage bond as against such lands. The following observations were made by the Court in this connection;
“Reading Sections 3, 4 and 6 together, it follows that all Estates notified under Section 3 vest in the State free of all encumbrances. The quondum proprietors and tenure holders of those Estates lose all interests in those Estates. As proprietors they retain no interest in respect of them whatsoever. But in respect of the lands enumerated in Section 6 the State settled on them the rights of raiyats. Though in fact the vesting of the Estates and the deemed settlement of raiyat’s rights in respect of certain classes of lands included in the Estates took place simultaneously, in law the two must be treated as different transactions, first there was a vesting of the Estates in the State absolutely, and free of all encumbrances. Then followed the deemed settlement by the State of raiyat’s rights on the quondum proprietors. Therefore, in law it would not be correct to say that what vested in the State are only those interests not coming within Section 6.”
The Court further held as follows;
“Under the circumstances, the only remedy open to the decree holders is that provided in Chapter IV of the Act, i.e. a claim under Section 14 before the Claims Officer for “determining the amount of debt legally and justly payable to each creditor in respect of his claim”.
The procedure to be followed in such a proceeding is prescribed in Sections 15 to 18. Provisions relating to the assessment and payment of compensation payable to the quondum proprietors and tenure-holders are found in Chapter V of the Act (Sections 19 to 31). Section 24 (5) provides that “in the case where the interest of a proprietor or tenure-holder is subject to a mortgage or charge, the compensation shall be first payable to the creditor holding such mortgage or charge and the balance, if any, shall be payable to the proprietor or tenure-holder concerned. That sub-section further prescribes the maximum amount that can be paid to such a creditor.
In view of what has been stated above, it follows that under the circumstances of this case, it is not open to the appellants to proceed with the execution. Their only remedy is to get compensation under the Act.”
14. In view of this decision, it follows that in the present case the bakasht lands in suit also must be held to have vested in the State on the vesting of the zamindari in question. In the present case, the mortgage in question comprised only the zamindari property which has subsequently vested in the State and did not include any other property. As such, it follows that the entire property covered by the mortgage has vested in the State. Hence, in view of the decisions of the Supreme Court, already referred to above, the provisions of Section 4 (d) are manifestly applicable to this case and, the only remedy of the mortgagee was to proceed under Section 14 of the Act by filing an application before the Claims Officer and any suit for enforcement of his claim is barred under Section 4 (d).
15. Mr. Kailash Roy, learned Counsel for Respondent No. 1 who had frankly drawn my attention to the aforesaid unreported decision of the Supreme Court, however, contended that it was not open to the appellants to raise any objection about the non-maintainability of the suit under Section 4 (d) as no such objection was raised when the case came up for hearing before this Court previously in Section A. No. 291 of 1963 (Pat.) and, according to him, the appellants were barred by the principles of constructive res judicata from raising any such plea. As already mentioned by its judgment in Section A. No. 291 of 1963, this Court had remanded the case for a fresh decision according to law on certain grounds as mentioned therein and, as such, there has been no final decision of this case by the judgment in that appeal.
In the circumstances, as there has been no final decision in this case as yet by this court and as the question as to whether the suit is barred by the provision of Section 4 (d) did not come up for decision of this Court in the aforesaid appeal and the case was remanded for fresh decision, it cannot be said that this court is debarred from deciding this question in the present appeal, which arises out of the fresh decision by the lower appellate court after the remand order. I am, therefore, unable to accept the contention that the appellants are debarred by the principles of constructive res judicata from raising this plea in the present appeal.
16. It was next contended that the provisions of Section 4 (d) are ultra vires, as although the creditors who have advanced loan on security of mortgage of zamindari properties have been debarred from instituting any suit by these provisions, no such restriction has been imposed with respect to other creditors, and, as such, this section is void on the ground of inequality of treatment and discrimination as between different creditors. I find, however, that there is no question of such inequality of treatment or discrimination, as the question of inequality or discrimination has to be considered with respect to same classes of persons or persons placed in the same situation. The creditors who have advanced loans on basis of security of zamindari properties, which have subsequently vested in the State have all been treated in the same manner under the provisions of the Bihar Land Reforms Act and they evidently comprise a class of persons who are distinct from unsecured creditors or creditors who have advanced loans on the basis of other securities.
As the properties on basis of which the former class of creditors advanced their loans, have vested in the State by virtue of the provisions of the Act thereby depriving such persons of such security, the Act itself has made specific provisions as incorporated in Section 14 etc., for determination of their dues and for payment thereof by making the amounts so determined a first charge on the compensation amounts payable to the proprietors or tenure holders. That being the position, it is held that the contention that Section 4 (d) is void on account of inequality in treatment or discrimination has no merit.
17. It follows in view of the findings above that the suit as instituted by the present Respondent No. 1 is not maintainable in view of the provisions of Section 4 fd) of the Land Reforms Act and, as such, the judgments and decrees of the Courts below have got to be set aside.
18. In the result, the appeal is allowed. The judgments and decrees of the trial Court as well as the lower appellate Court are hereby set aside and the suit as instituted by the plaintiff-respondent No. 1 is dismissed as being not maintainable. In the circumstances of the case, it is directed that the parties shall bear their own costs of this Court as well as the Courts below.
