The main legal point established in the judgment is that the appellant's right to pursue remedies under the ordinary law against the non-vested properties had not been taken away by the Bihar Land Reforms Act. The court also clarified that the doctrine of election did not apply in this case, allowing the appellant to withdraw the claim petition to seek remedies against the non-vested properties.

Judgment

VAIDIALINGAM, J. : In this appeal, by special leave, the judgment and order of a Single Judge of the Patna High Court, constituted as the Board, under S. 18 (1) of the Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950), (hereinafter referred to as the Act), are under attack.

2. The appellant had taken three mortgages from the respondents on July 20, 1915 for Rs. 15,000, on April 24, 1917 for Rs. 33,000 and on November 12, 1917 for Rs. 42,500. He had filed a suit for recovery of the mortgage amounts and also obtained a decree.

3. On November 18, 1925, the appellant had obtained a usufructuary mortgage for a total sum of Rs. 84,000, comprising of three different sets of properties (a) five items of milkiat properties; (b) a three-storey house in the town of Gaya; and (c) certain bakasht lands. The deed of mortgage is marked as Exhibit I. By this mortgage, the earlier decree was repaid.

4. By virtue of a notification issued under S .3 of the Act the milkiat properties vested in the State of Bihar on January 25, 1955; and in respect of the baskasht lands, the respondents became statutory tenants, under S. 6.

5. The appellant filed an application dated April 24, 1955, under S. 14 of the Act before the Claims Officer. In that application he had stated, after giving particulars of the items mortgaged under Exhibit 1, that the principal amount advanced was Rs 84,000 and that no amounts had been paid by the mortgagors towards their liability The appellant requested the Claims Officer to allow his claim, as per the provisions of the Act.

6. The respondents filed objections to the claim made by the appellant. In short, their plea was that the appellant had not given credit for a sum of Rs 20,000 which, amount, according to them, had been paid by one Maheshwari Singh, a purchaser of an item of mortgaged properties They also alleged that the appellant had not given credit similarly to another sum of Rs. 3,250 paid by one Baldeo Singh, a purchaser of another item of the mortgaged properties. The last contention raised by them was that the appellant had realised, as income from the properties, a sum of Rs. 9,00,000 and therefore the entire mortgage liability stood discharged. It may be mentioned at this stage that according to the appellant, he had realised only a sum of Rs 23,250 as income from the properties, which were in his possession.

7. The Claims Officer, by his order dated April 18, 1956, ultimately held that the appellant was entitled to recover a sum of Rs. 40,514-10-0 out of the compensation money in respect of his mortgage claim. The Claims Officer was not prepared to accept the plea of the respondents regarding the payment of Rs. 20,000 by Maheshwari Singh.

8. On an admission made by the appellant, the Claims Officer held that a sum of Rs. 2,309-8-0 had been received by the appellant from a purchaser of one item of the mortgaged properties and that the respondents were entitled to be given credit for that amount. The Claims Officer accepted the plea of the respondents that, in respect of the house in Gaya, a ratable reduction of Rs. 2,500 might be made, out of the principal amount. The Claims Officer was not prepared to accept the plea of the respondents that the appellant had received, by way of income from the mortgaged properties in his possession, a sum of Rs, 9,00,000.

9. On the other hand, the abstract of accounts submitted by the appellant showing the net income received, as Rs. 22,340-3-2, has been accepted by the Claims Officer. The Claims Officer had also held that the principal amount advanced by the appellant should be fixed in the sum of Rs. 45,324.

10. On these findings, the Claims Officer came to the conclusion that no portion of the principal amount had been satisfied out of the usufruct of the property given on mortgage, except the sum of Rs. 2,309-8-0 received by the mortgagee, from the purchaser of an item of the mortgaged properties. A further reduction of Rs. 2,500, out of the principal amount, was made