K.S. Hegde, J.
1. The only question that arises for decision in this Appeal by certificate is whether 'the suit is barred under the provisions of the Bihar Land Reforms Act' (to be hereinafter referred to as the Act). That question is concluded against the respondents in view of the decision of this Court in Shivshanker Prasad Shah and Anr. v. Baikunth Nath Singh : 3SCR908 .
2. The facts necessary for deciding this appeal, briefly stated, are as follows :
3. The suit from which this appeal arises is based on two simple mortgage deeds executed by one Hardeo Singh, the father of defendant No. 1 (the appellant in this appeal) on his own behalf and as guardian of his minor sons, The first of these two mortgages was executed on September 14, 1943. That was for a sum of Rs. 11,500/-. The second mortgage was for a sum of Rs. 4,000/-executed on May 3, 1946. Both of them are simple mortgages The rate of interest prescribed under those mortgages is 12 per cent per annum. On the foot of those mortgages, the respondents who are mortgagees brought the suit from which this appeal arises claiming therein a sum of Rs. 30,600/-with future interest. The trial Court dismissed the suit as being not maintainable in view of the provisions of the Bihar Land Reforms Act, 1950 But in appeal the High Court of Patna reversed the decree of the trial Court and granted a preliminary decree for the amount due under those deeds. It granted four months' time to the defendants to pay up the decretal amount with interest to the plaintiffs. It further ordered that in default, the preliminary decree shall be made final and the properties mentioned in Schedule 3 of the plaint shall be sold to satisfy the decretal dues.
4. Under the two mortgages mentioned above, the mortgagor had mortgaged his proprietary right in the properties mentioned in the Schedule annexed to those mortgages. We were told at the bar that the second mortgage was in respect of the very properties that had been mortgaged under the first mortgage. According to the defendants all the properties mortgaged under the two deeds mentioned earlier had vested in the Government in view of the provisions of the Act and therefore the mortgager could have proceeded only Under Section 14 of that Act. The defendants contended that the present suit was barred by the provisions of the Act. It was claimed on behalf of the plaintiffs that the properties mentioned in Schedule 3 of the plaint are Zirat, bakasht and giarmazrus lands. The contention of the plaintiffs was that the properties that fall within the scope of Section 6 of the Act have not vested in the Government Under Section 4. In support of that proposition, the plaintiffs relied on the Full Bench decision of the Patna High Court in Sihdeshwar Prasad Singh v. Ram Saroop Singh : AIR1963Pat412 . The High Court accepted that contention and decreed the suit as mentioned earlier.
5. As mentioned earlier the very question that we are now called upon to decide had been considered and decided by this Court in Shivashankar Prasad's case (supra) Therein this Court ruled that the properties mentioned in Section 6 of the Act have also vested in the Government Under Section 4. Dealing with that question this Court observed :
The consequences of the vesting of an Estate is set out in Section 4, Section 4(a) provides that once an Estate vests in the State the various rights in respect of that Estate enumerated therein shall also vest in the State, absolutely, free from all encumbrances. Among the rights enumerated therein undoubtedly includes the right of possession. In view of Section 4(a) there is hardly any doubt that the proprietor loses all his rights in the estate in question. After setting out the various interests lost by the proprietor that section proceeds to say 'such proprietor or tenure holder shall cease to have any interests in such estate or tenure other than the interests expressly saved by or under the provisions of this Act'. In order to find out the implication of the clause extracted above we have to go to Section 6 which provides that on and from the date of vesting all lands used for agriculture or horticultural purposes which were in khas possession of an intermediary on the date of vesting (including certain classes of land specified in that section) shall subject to the provisions of Sections 7A and 7B deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a rayat under the State having occupancy rights in respect of such lands, subject to the payment of such fair and equitable rent as may be determined by the Collector in the prescribed manner.
Reading Sections 3, 4 and 6 together, it follows that all Estates notified Under Section 3 vest in the State free of all encumbrances. The quondam proprietors and tenure-holders of those Estates lose all interests in those Estates. As proprietors they retain no interest in respect of them whatsoever. But in respect of the lands enumerated in Section 6, the State settled on them rights of rayats. Though in fact the vesting of the Estates and the deemed settlement of the rayat's rights in respect of certain classes of lands included in the Estates took place simultaneously, in law the two must be treated as different transactions; first there was a vesting of the Estates in the State absolutely, and free from all encumbrances. Then followed the deemed settlement by the State of Rayat's rights on the quondam proprietors Therefore in law it would not be correct to say that what vested in the State are only those interests not coming within Section 6.
6. Even according to the mortgagors, the properties mentioned in Schedule 3 of the plaint are properties coming within Section 6. Hence it must be held that those properties had vested in the Government in view of the notification dated May 20, 1952 issued by the State under Sub-section (1) of Section 3 of the Act, In the aforementioned decision this Court further ruled that after the vesting of the estate, the mortgagee can only have recourse to Section 14 of the Act for realising the amount due to him under the mortgage. As Section 4(d) of the Act provides that :
no suit shall lie in any Civil Court for the recovery of any money due from such proprietor (proprietor whose estate has vested in the State) or tenure-holder the payment of which is secured by mortgage of, or is a charge on, such estate or tenure and all suits and proceedings for the recovery of any such money which may be pending on the date of vesting shall be dropped.
7. In that decision this Court overruled the decision of the Patna High Court in Sidheshwar Prasad Singh's case (supra).
8. Mr. D.P. Singh, learned Counsel for the respondents contended that the decision in Shivshanker's Case (supra) is in conflict with the decision of this Court in Ram Kishan Nahton and Ors. v. Chhotton Lal and Ors. C.A. 1104/65 decided on 13-8-69. We do not think that there is any substance in this contention. Therein the question that arose for decision by this Court was whether a mortgager who has trespassed on the mortgaged property which was in the possession of the mortgagee can resist the claim of the mortgagee to be in possession. The question that arose for decision in that case does not bear on the question of law that we are called upon to decide in the present case.
9. In the result this appeal is allowed, judgment and decree of the High Court are reversed and that of the trial Court restored. But in the circumstances of the case we make no order as to costs.