Advocates:
['ISHTEYAQUE AHMAD', '', 'ARVIND KUMAR MEHTA', 'MD SHAMIM AKHTER', 'ALOK LAL', 'ATANU BANERJEE', '', 'VIPUL DIVYA', 'SWEETY TOPNO', 'ARUN KUMAR', 'SHYAM SUNDER PD KUSHWAHA']

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Second Appeal No. 114 of 2004

1. Braj Kishore Sahu

2. Awadh Kishore

3. Binod Prasad

4. Pramod Prasad

....

…. Appellants

Versus

1. Shri Tribhuwan Nath Sahdeo

2. Shri Niranjan Nath Sahdeo

3. Smt. Kalindi Devi

....

.... Respondents

With

Second Appeal No. 117 of 2004

1. Braj Kishore Sahu

2. Awadh Kishore

3. Binod Prasad

4. Pramod Prasad

....

…. Appellants

Versus

1. Shri Tribhuwan Nath Sahdeo

2. Shri Niranjan Nath Sahdeo

3. Smt. Kalindi Devi

4. Nirmala Kumari

5. Bidhatri Kumari

....

.... Respondents

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CORAM: HON'BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY

------

For the Appellants

: M/s Shamim Akhtar & Abhay Shankar, Advocates

For the Respondents

: M/s Manjul Prasad, Sr. Advocates

Mr. Baban Prasad, Advocate

C.A.V. ON 23 .03.2022

PRONOUNCED ON 28 / 04 / 2022

1.

Appellants are the plaintiffs in both these appeals who are before this

Court in appeal against the judgment of affirmance in Title Appeal Nos. 66

and 67 of 1993. Title Appeal No. 66 of 1993 arises out of the judgment and

decree in Title Suit No. 6/1987 and Title Appeal No. 67 of 1993 arises out

Title Suit No. 7/87.

2.

Both the appeals arise out of common judgment delivered by

Additional district Judge Lohardaga in Title Appeal No. 66 and 67/93. They

have been heard together and shall be disposed of by a common judgment.

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3.

Mortgage Title Suit No. 6 and 7 of 1987 was filed by Ram Dayal

Sahu against Lal Pashupati Nath Sahdeo for foreclosure and to debar the

defendant from redeeming the mortgage property comprising land

measuring 1.28 acres fully detailed in both the plaints.

4.

The plaintiffs brought the suit for foreclosure of the mortgage against

the defendant, Lal Pasupati Nath Sahdeo. The mortgage deed dated

29.1.1972 was executed by Lal Pasupati Nath Sahdeo to Ram Dayal Sahu,

father of the plaintiff for a sum of Rs.2000. The deed of mortgage was with

respect to the land measuring an area 1.28 acres fully detailed in the

schedule of the plaint. The terms and conditions of the mortgage deed was

that the property shall be redeemed within five years of the mortgage, failing

which the mortgage deed would be deemed to be of absolute sale. The

mortgagor failed to repay the amount of Rs.2000 within the stipulated

period. The name of the mortgagee was mutated and rent receipt issued on

his payment of rent the plaintiff was not a professional moneylender. On the

default in payment of the mortgage amount the suit was filed under section

67 of the transfer of property act for foreclosure.

5.

It is the case of the defendant that mortgage money of Rs.2000 was

tendered on 27^th December 1974 and the same was received by the plaintiff

to return the mortgage deed and also to deliver the back in possession of the

mortgage land. It is specific defence of the defendant that suit was hit by the

Bihar Moneylenders Act. The plaintiff has been enjoying the usufruct of the

land in suit by advancing a mortgage amount of Rs.4000 by both the

mortgage deeds. The annual income of the said land was not less than

Rs.5000 and thus the plaintiff has earned about Rs.85,000 from the said

land. The term of mortgage placing embargo on the redemption of mortgage

of property by shortening the period within which the redemption could be

sought, was a clog on redemption and as such void ab initio. The period of

redemption is 30 years provided by statute which cannot be shortened by the

term of mortgage. It has been denied that it was a mortgage by conditional

sale.

6.

On the basis of the pleadings of the parties the following main issues

were framed :

Issue No. IV – Whether mortgage deed became absolute sale by lapse of

time?

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Issue No. V – Whether the plaintiff has acquired right, title and interest over

the suit property?

Issue No.