A suit for redemption and recovery of possession of mortgaged land, where the plaintiff claims statutory discharge of the mortgage, abates under Section 4 (4) of the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972, when the suit lands are brought under consolidation operations by virtue of a Government Notification under Section 3 of the Act.

B. N. MISRA, J.

( 1 ) THE defendants have filed this appeal against the affirming decision of the learned Subordinate Judge, Sonepur. Plaintiffs ease is that the suit lands were recorded in his name and in the names of his brothers in the Fourth Settlement of village Arigaon in Sonepur. In the partition between the plaintiff and his brothers the suit lands had fallen to the share of the plaintiff. In the year 1943, the plaintiffs father took a loan of Rs. 30 from the original defendant, the late Baikuntha alias Beda Mali (the present defendants are the legal representatives of the late Baikunntha), and executed a deed of mortgage in respect of the suit lands. The father of the plaintiff and the late Baikuntha had agreed that the mortgage debt would be repaid out of the usufruct of the suit lands. The late Baikuntha had been in possession of the suit lands since 1943 and though the entire mortgage debt had been paid off several years age, he was not vacating possession of the suit lands in spite of demands by the plaintiff. The mortgage stands discharged after expiration of fifteen years from the date of the mortgage, yet the late Baikuntha was not giving up possession. The plaintiff was therefore compelled to file the present suit for redemption and return of the mortgage bond, for a declaration that the suit lands were released from the mortgage debt and for recovery of possession through Court,

( 2 ) THE written statement filed by the late Baikuntha has been adopted by the present defendants. According to the written statement, the father of the plaintiff had not executed a mortgage bond for Rs. 30 in respect of the suit lands, but he had executed a deed of sale on 12-1-1943 in, respect of the suit lands in favour of the late Baikuntha for a consideration of Rs. 30. The father of the plaintiff had put the late Baikuntha in possession of the suit lands on the strength of the deed of sale and since then the latter went into possession of the suit lands on his own right, title and interest. In the Bhogra Conversion proceeding of village Arigaon occupancy rights were conferred on the late Baikuntha by the Collector after due enquiry. The defendants have denied that the relationship between the father of the plaintiff and the late Baikuntha was that of mortgagor and mortgagee. It is also' denied that there was any agreement between the plaintiff's father and the late Baikuntha that the mortgage debt was to be repaid out of the usufruct of the suit lands. The other allegations contained in the plaint have also been denied and the defendants have prayed for dismissal of the suit.

( 3 ) THE learned Munsif who tried the suit found that the plaintiff' father had not sold the suit lands to the late Baikuntha, that the-latter was in possession of the suit land as a usufructuary mortgagee even after the statutory discharge of the mortgage, that occupancy rights in respect of the suit lands had not been conferred on the late Baikuntha by the Collector and that the defendants have not acquired title over the suit lands by adverse possession. The plaintiff's suit was accordingly decreed, for redemption and; the defendants were directed to deliver possession of the suit lands to the plaintiff and to return the mortgage deed within three months and in case of default, the plaintiff was to recover possession through Court. The appeal filed by the defendants having been dismissed, they have filed the present second appeal,

( 4 ) ON the basis of submission made by the learned counsel for appellants, the substantial question of law which was formulated by this Court on 16-11-1977 is whether the plaintiff whose claim is based on statutory discharge of the usufructuary mortgage could have filed a suit for redemption instead of filing a suit for recovery of possession. This question does not arise as on going through the plaint I find that in addition to redemption the plaintiff has prayed for recovery of possession through Court.

( 5 ) THE main