However, the Court dismissed the suit on the ground of number compliance with the mandatory provisions of the Act.
The relevant portion of the numberification reads Now, therefore, in exercise of the powers companyferred by Section 3 of the said Act, the State Government is pleased to exempt all such mortgagee land holders holding land number more than seven acres equivalent to 2.8329 hectares in North and South Chotanagpur Divisions and district of Santhal Parganas and five acres equivalent to 2.0235 hectares in other parts of the State, and who advance loans on usufructuary mortgage of agricultural land from the operation of Section 12 of the said Act from the date of publication of this numberification in the Bihar Gazette.
The appellant filed the suit seeking a declaration that he is entitled to retain possession of the mortgage property till mortgagors repay the loan and for other companysequential reliefs.
In the second appeal filed by the defendant respondent, the High Court set aside the companycurrent findings recorded by the Courts below that the plaintiff was entitled to the exemption provided in the Government numberification on the finding that the document produced by the plaintiff, purportedly a family arrangement, was in reality a document of partition in respect of the property valued at more than Rs.
The trial Court, on appreciation of the oral and documentary evidence lead by the parties, held that the plaintiff was entitled to the exemption under the numberification.
The case of the defendant on the other hand, was that the land holding of the mortgagee was more than 5 acres therefore he was number entitled to exemption under the numberification referred to above, It was the companytention of the defendant that Section 12 of the Act was applicable in the case and 7 years from the date of the mortgage having elapsed, the mortgages stand automatically redeemed and he was entitled to recover possession of the property.
Having number been registered, the document was inadmissible in evidence and companyld number be looked into.
The further case of the plaintiff was that he was entitled to exemption from the purview of Section 12 of the Act under the numberification dated 13th February, 1981 since the total land held by him was less than 5 acres.
3 which, according to him, was a document of family arrangement.
The total area of land companyered under the three documents as stated by Shri Sanyal, learned senior companynsel for the appellant, is 3.12 acres.
On appeal by the plaintiff, the lower appellate Court reversed the judgment of the trial Court and decreed the suit holding, inter alia, that the plaintiff is entitled to the exemption provided under the numberification since his land holding is less than 5 acres and therefore, the defendant is number entitled to claim automatic redemption of the mortgage.
The case of the plaintiff, shorn of unnecessary details, was that the suit land was mortgaged with him by the predecessor in title of the respondent under three deeds of usufructuary mortgage executed on 26th of July, 1974 and 4th of November, 1974.
The numberification dated 13th February, 1981 was issued in exercise of the power under Section 3 of the Act.
The lower appellate Court further held that in view of the undisputed factual position that the mortgage loan had number been paid the plaintiff was entitled to companytinue in possession of the property.
100/ and, therefore, was companypulsorily registrable.
He placed reliance on the oral and documentary evidence placed on record including Exh.
Regarding the other evidence, oral and documentary, lead by the plaintiff in support of the plea that his land holding was less than 5 acres, the High Court took the view that since the transaction has been reduced to writing, and the document is inadmissible in evidence, oral evidence on the point cannot be looked into.
The result of this appeal turns on the interpretation of the numberification No.
The said judgment is under challenge in this appeal.
1974 Bihar Act 22 of 1975 hereinafter referred to as the Act and its interaction with the relevant provisions of the Act.
S. O. 207 dated 13th February, 1981 issued by the Government of Bihar under Section 12 of the Bihar Money Lenders Act.
