P L D 1967 Dacca 263 (PLP)

The special relief which is given by section 26‑G of the Bengal Tenancy Act is that, on the expiry of a period of fifteen years, the mortgagor would be immediately entitled to obtain possession of the mortgaged‑property without showing that the mortgage‑debt has been, in fact, wiped out. For reasons, which I have specified above, I am in agreement with the decisions of this Court cited above. The next question is, whether plaintiffs should be non‑suited on the ground that the suit is hit by the provisions of Article 181 of the Limitation Act. Learned Advocate for the plaintiff‑respondents 'has pointed out that the present suit is a regular suit instituted by mortgagors against mortgagee on payment of ad valorem court‑fees computed with reference to the mortgage‑debt, under section 7 (xi) of the Court Fees Act. He has also drawn my attention to the provisions of subsection (6) of section 26‑G of the Bengal Tenancy Act, which read thus: "An application under subsection (5) shall be accompanied by a process fee of the prescribed amount for service of notice on the mortgagee, and the Court to which such an application is made, may, after service of such notice, award to the mortgagor such compensation as appears equitable and may pass an order restoring possession of the mortgaged property to the mortgagor." Learned Advocate for the respondents has drawn my attention to the fact that the procedure for making an application under subsection (5) of the said section 26‑G only requires the payment of a process fee of the prescribed amount for service of notice on the mortgagee. He has urged that ad valorem court‑fee is not required to be paid and need not be paid with regard to an application under section 26‑G. He has then drawn my attention to rule 880, sub‑rule (29), of the Civil Rules and Orders, Volume I, which applies to an application under section 26‑G of the Bengal Tenancy Act and has pointed out that under the aforesaid Rule such an application should be treated as a miscellaneous judicial case. The position, therefore, resolves itself to this that although plaintiffs' suit was specifically described as an application under section 26‑G of the Bengal Tenancy Act and the mortgage deed also specifically mentions the said section, nonetheless, the position is that the transaction is admittedly a mortgage and plaintiffs are entitled to reliefs apart from special remedies given to them under section 26‑G. The mortgage does not cease to be a usufructuary mortgage under the Transfer of Property Act because special reliefs under section 26‑G are claimed in the suit and because the mortgage deed is stated to have been made with reference to the said section 26‑G of the Bengal Tenancy Act. Learned Advocate has asked me to treat the present suit as a mortgage suit simpliciter and to give the plaintiffs reliefs to which they are entitled under the general law of mortgage. Since the present suit has been instituted in compliance with all the formalities and requirements of a regular suit, it must be held that it should be looked upon as a regular suit to redeem a mortgaged‑property. Since it is a case of a usufructuary mortgage, it would have to be seen whether the mortgage‑debt has, in fact, been paid off by the enjoyment of the usufruct of the property, even if plaintiffs are not entitled to any relief under section 26‑G of the Bengal Tenancy Act, such relief being barred under Article 181 of the Limitation Act. The period of limitation for an ordinary redemption suit is sixty years. Plaintiffs cannot claim the special kind of relief provided by section 26‑G of the Bengal Tenancy Act, but in the present case, they are entitled to show that the mortgage‑debt has, in fact, been wiped out by the enjoyment of the fruits of the mortgaged property. The next question is, is the mortgage‑debt existing? Mr. M. A. Rouf has pointed out that it is the admitted case of the parties that the mortgage‑debt has been satisfied by the enjoyment of the usufructs of the suit‑land. He has drawn my attention to the following portion of the judgment pronounced by the learned Munsif: "It is not disputed that the mortgage bond along with interest thereon has been more than satisfied by the enjoyment of the usufruct of the suit land by the defdts." Learned Subordinate Judge has negatived the contention of the defendant‑appellants that the usufructuary mortgage created by plaintiffs has been substituted by a subsequent event: namely, in the first place, by the alleged auction‑purchase of the suit‑land by the landlord and, secondly, by the alleged surrender of the suit‑land to the said landlord by one of the plaintiffs. The Appellate Court below has not accepted the defendants' contention of a re‑settlement of the suit‑land. The alleged surrender of the suit‑land by one of the plaintiffs has also been held to be inopera tive apart from the fact that the defence allegation in this behalf has been disbelieved. It is urged by the learned Advocate for the plaintiff‑respondents that the appeal should be dismissed and the decree passed by the Appellate Court below should be affirmed because, according to his submission, plaintiffs are, in any event, entitled to get back possession of the suit land. For reasons stated above, this contention must be accepted with a modification which I indicate below: It appears from the records of this case and from the evidence as led by the parties that a sum of Rs. 75 is alleged to have been paid to the plaintiffs. There is no clear finding to the effect that this sum of Rs. 75 was never paid by the defendants to the plaintiffs, although the story of surrender of the suit‑land by plaintiffs has been falsified. I, therefore, feel that a definite finding must be arrived at in respect of the same. If necessary, parties may be allowed to lead evidence in this behalf, but caution must be exercised in receiving such evidence. The appeal is, therefore, dismissed and the judgment and decree passed by the Court of Appeal below are hereby affirmed subject to the condition that before plaintiffs obtain possession of the suit‑land, they must pay the defendant- appellants the said sum of Rs. 75 or any sum which they might have paid to plaintiffs in respect of the mortgage‑debt, if it is found that defendants had, in fact, paid any amount to plaintiffs in connection with the suit‑land. I direct that this part of the case be remanded back to the trial Court to come to a finding only on the question as to whether defendants had succeeded in showing payment of any sum of money to plaintiffs in respect of the mortgaged property during the subsistence of the mortgage. The judgment and decree of the Appellate Court below, as affirmed by me, would become operative in accordance with the finding arrived at by the Trial Court on the point referred to it. If defendants cannot prove payment of any money to plaintiffs, as stated above, the decree that has been passed now will immediately become operative without any further condition. Let the records be sent down with expedition and the matter sent back, on remand, should be decided with utmost expedition. I make no order as to costs of this appeal. , S. Q. Appeal dismissed.