JUDGMENT P.R. Sharma, J. 1. This is a plaintiffs second appeal against the judgment and decree dated the 20th of January, 1958 passed by the Addl. District Judge, Vidisha, in Civil Appeal No. 131 of 1956 whereby he affirmed the judgment and decree passed on 31-5-1956 by the Civil Judge, IInd Class Bhilsa, in Civil Suit No. 245 of 1955. 2. The suit out of which the present appeal arises was institued by the present appellants and was based on the allegations that the plaintiffs, who were the Zamindars of village Karhaiya, had mortgaged with possession their entire Zamindari property with respondent No. 1 and one Ramprasad for a period of 25 years. One of the conditions of the mortgage was that respondent No. 1 shall not grant maurusi rights in the land to any agriculturist on acceptance of Nazrana. The respondent No. 1, however, leased out the land to respondent No.2 during the continuance of the mortgage. 3. The appellants were released from the mortgage debt by an order of the Agricultural Debtor's Relief Court at Bhilsa. Thereafter they served a notice on the respondents demanding possession of the mortgaged lands. 4. The respondent No.1 replied that proceedings should be taken against respondent No. 2 as he had no interest left in the land. The respondent No. 2 in his turn claimed that he had become a pakka tenant of the State and could not, therefore, be asked by the mortgagors to deliver possession there of. The present appellants, therefore, filed a suit for recovery of possession of the land in dispute and for mesne profits at the rate of Rs.50. P.M. till recovery of possession. 5. The Courts below have held that a suit for ejectment of a pakka tenant cannot lie in a Civil Court. It is a fact not disputed by the appellants that possession of the land in dispute has not been with the plaintiffs since 1940 when the mortgage in favour of the respondent No. 1 was effected. On the coming into force of the Zamindari Abolition Act (No XIII of 1951) by virtue of Sec. 4 thereof all rights, title and interest of the proprietor in a Zamindari area vested in the State. On the coming into force of the Zamindari Abolition Act (No XIII of 1951) by virtue of Sec. 4 thereof all rights, title and interest of the proprietor in a Zamindari area vested in the State. By sub-section (2) of Sec. 4 of the Zamindari Abolition Act all that the proprietor was allowed to retain after the date of vesting was possession of his khadkasht land which was so recorded in the annual village papers before the date of vesting. It is no one's case that the lands in dispute were recorded in the annual village papers as the plaintiffs khud-kasht lands. The present appellants having transferred their entire Zamindari lands under the mortgage-deed to respondent No. 1 and the latter having leased out the said lands to respondent No. 2 they could not be treated as the plaintiffs' khud-kasht lands after 1940. 6. I have already held in Civil Second Appeal No. 50 of 1958 (State of M.P vs. Gulab singh and others ) that the word 'tenant' as used in Sec. 38 of the Zamindari Abolition Act would include a person who as defined in the Qanoon Mal Gwalior State binds himself to pay rent (Lagan) in respect of the land to the proprietor. 7. In the present case the proprietor having transferred his rights to the mortgagees, the latter would under Sec. 76 of the Transfer of Property Act have a right to lease it out to other persons. The mortgage-deed no doubt contained a prohibition against reation by the mortgagee of maurusi rights in favour of any other person on acceptance of Nazrana, There can be no doubt that if the Zamindari Abolition Act had not been passed the mortgagors would have no redemption of the mortgaged land from a tenant of the mortgage. But where by operation of law a tenant of the mortgagee acquires the rights of a pakka tenant his title to the land can no longer be said to be derived from the mortgagee and as such he cannot be deprived of the status which the law has conferred on him independently of the right of the mortgagor. The question, however is whether respondent No. 2 can be said to be a tenant of a propritor within the meaning of Sec. 38 of the Zamindari Abolition Act. The question, however is whether respondent No. 2 can be said to be a tenant of a propritor within the meaning of Sec. 38 of the Zamindari Abolition Act. The word propritor has been defined in clause (a) of Sec. 2 of the Zamindari Abolition Act as follows:- (a) "Proprietor" means, as respects a village, muhal or land settled on Zamindari system a person owning whether in trust or for his own benefit such village muhal or land and includes- (1) a Malguzar as defined in sub-clause (12) of Section 2 of Quanoon Mal, Gwalior State, Samvat 1983; and (2) as respects a chak or block a chakdar or blockdarr whose lease granted to him by the Government under any Act, Rules or Circular relating to chaks and blocks, includes also, amongst its other conditions, a condition that he shall acquire the proprietary rights in respect of that chak or block when the conditions of the lease are fulfilled. (3) The heirs and successors in-interest of a proprietor: Under sub-Clause (12) of Sec. 2 of the Quanoon Mal, Gwalior State the term Malguzar includes a mortgagee from the Malguzar. The mortgagee would, therefore, be a proprietor for purposes of Sec. 38 of the Zamindari Abolition Act and a tenant of the mortgagee would, as from the date of vesting, by virtue of Sec. 38 of the Act automatically becomes a pakka tenant of the lands held by him. 8. It was argued that Sec. 250 of the Quanoon Mal, Gwalior State lays down that a mortgagee cannot acquire maurusi rights in the mortgaged land even though it is personally cultivated by him. To my mind it is not material for the present case to consider what would have been the position of the mortgagee or persons claiming under him in respect of khud-kasht land if the Zamindari Abolition Act had not been passed. It is in my opinion sufficient for the purposes of the Zamindari Abolition Act to hold that the definition of a proprietor as contained in this Act would by virtue of sub-clause (12) of Sec. 2 of the Quanoon Mal, Gwalior State to which specific reference is made in Sec. 2(a) (1) of the Zamindari Abolition Act, the term proprietor would include a mortgagee (with possession) of a Malguzar. 9. 9. It would, therefore, follow that respondent No 2 was a tenant from proprietor and, therefore became a pakka tenant from the date of vesting by operation of law. 10. No allegation has been made in the present case to show that respondent No. 2 could not legally acquire the status of a pakka tenant under Sec. 38 of the Act. The only claim of the mortgagor is that the mortgagee-debt having been discharged he is entitled to recover possession of the mortgaged land from respondent No. 2 Had the respondent No. 2 been a tenant of the mortgagee on the date of the suit, and the Zamindari Abolition Act had not altered his status the situation might have been different. But in the present case the respondent had become a pakka tenant in his own right of the land comprised in his holding. It was held in the case, of Bhupsingh and others vs. Sheo Shankar and others by Sulai-man Acting C. J. reported in AIR 1931 All.743, that on redemption of a mortgage the tenants of the mortgagee do not become trespassers and the mortgagor has no right to sue them for ejectment in a Civil Court. 11. I have already held above that the mortgagee had in the present case authority to lease out the land to respondent No. 2. The respondent No. 2 cannot be treated to be a trespasser nor is it the case of the plaintiff that he acquired the status of a pakka tenant by fraud or mis-representation. I am in respectful agreement with the view expressed by Sulaiman C- J. in the case aforesaid. 12 For the reasons stated above I am of the opinion that the present suit as framed is unmentionable. 13. This appeal shall, therefore stand dismissed with costs throughout. Appeal dismissed