RAJ KISHORE PRASAD NARAIN SINGH versus RAM PARTAP PANDEY & ORS.

Citation: [1967] 2 S.C.R. 56 · Decided: 07-11-1966 · Supreme Court of India · Bench: K.N. WANCHOO · Disposal: Appeal(s) allowed

Judgment (excerpt)

RAJ KISHORE PRASAD NARAIN SINGH 
v. 
RAM PARTAP PANDEY & ORS. 
l'/ovember 7, 1966 
[K. N. WANCHOO, G. K. MITTER AND C. A. VAIDIALINGAM, JJ.) 
Bi/Jar Land Reforms Act, 1950 (Biliar Act 30 of 1950), s. 14-
Mortgaged land \'esting in State-Claim in respect of mortgaged property 
including land filed before claims officer-Claim sought to be withdrawn 
at appellate stage-Mortgagee whether fret to pursue remedlu under 
ordinary law In respect of non-vested proptrties-Applica1io11 und'T s. 14 
whether amounts to a final election of .emedies under the Act only. 
The appellant had obtained a usufructuary mortgage from the respon-
dents in 1925 in respect of three sets of properties in Bihar : (a) live 
items of milkiat properties; (b) a three storey houso in the town of Gaya; 
and ( c) certain bakasht lands. 
By viriue of a notification issued under 
s. 3 of the Bihar Land Reforins Act, 1950, the milkiat properties vested 
in the State of Bihar in January 25, 1955., and in respect of the bakasht 
lands, the respondents became statutory tenants under s. 6. 
On April 24, 
1955, the appellant filed an application under s. 14 of the Act before the 
Claims Officer alleging that no amounts had been paid by the morlgagor.1 
towards their liability. The respondent,; filed objection.• disputing the 
amounts claimed by the appellant. 
The Claims 
Officer partly allowed 
the claim of the appellant. The respondent thereupon filed an appeal 
before the Board consisting of a single Judge Of the High Coun constitut-
ed under s. 18(1) of the Act. On November 9, 1959 the appellant filed 
an application for permission to withdraw the claim case preferred by him 
before the claims officer and further requested that the proceedings 
in 
the claim appeal filed by the respondent be dropped. This application 
was rejected by the Board on the ground that having once elected the 
procedure under the Act the appellant was not entitled 
to enforce hi.• 
right under the ordinary law 
even in respect of propenies not affected 
by the Act. On the merits, the respondents' appeal was allowed. 
The 
appellant came lo this Court by special leave. 
The question that fell for consideration was whether in a case. where 
a mortgage related to two sets of propcrlies-those which vested in the 
State and those which had not-the right of the morigagee 
to pursue 
remedies under the ordinary law in respect of non-vested properties had 
in any way been curtailed by the Act. 
HELD : (i) The Act gives jurisdiction to the authorities concerned 
only in respect of propenies which have vested in the State; and the claims 
that are filed and adjudication made by the authorities concerned, nnder 
the Act, can only be with reference to estates that have vested in the 
State. Tbe prohibition contained in ss. 4(d) and 35 of the Act mnst also 
relate only to matters which can form properly the subject of a claim or 
an adjudication under the Act. [67 E-F] 
Therefore while in respect of the estates which have vested in the State 
under the Act, the mongagee will be bound to have recourse to the pro-
cedure laid down in the Act, in so far as his morl$a&e takes in other pn>-
pertles his right to enforce his claim under the ordinary law has not been, 
10 any manner, infringed or taken away by the Act. [67 OJ 
A 
B 
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G 
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A 
B 
c 
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KISHORE PRASAD ... RAM PRATAP (Vaidialingam, /.) 
57 
(ii) The High Court was wrong in holding that the appellant when he 
filed an application under s. 14 must be considered to have elected bis 
remedy unde,r the Act and therefore be should not be permitted to with-
draw the claim. There is no bar to a tribunal permitting the withdrawal 
of any proceeding if it is satisfied that the said request can be granted 
otherwise, .even though, technically, the provisions of O.XXIII C.P.C. may 
not apply. There could be no l",'Ssible prejudice to the respondents by 
the appellant being allowed to withdraw his claim petition to enable him 
to seek his remedy under the ordinary law in respect of the nor-vested 
properties. But, as and when the, appellant sought his remedy to enforce 
bis mortgaae as against t!ie properties which had not vested in the State 
tho Tribunal or Court may have to apply the principle of Marshalling. 
[68 A-F; 69 Bl 
Case law considered. Observations contra in Sukhtko Das v. Ka.<hi 
Prasad :A.l.R. 1958 Pat. 630 and Sidheshwar Prasad IV. Ram Saroop A.I.R. 
1963 Pat. 412, disapproved. 
Raja Sallendra Narayan Bhan; Deo v. Kum

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