JUDGMENT SHIV DAYAL, J. 1. This is plaintiffs second appeal in a suit for redemption of agricultural land which was mortgaged on June 28, 1922. The suit was instituted in the year 1946. During the pendency of the suit the Madhya Bharat Zamindari Abolition Act came into force on Oct. 2, 1951. The defendants resisted the suit denying the fact of mortgage. The trial Judge passed a decree in favour of the plaintiffs. The lower appellate Court has reversed it on the ground that the plaintiffs did not prove the land to have been their Khudkasht at the time of the mortgage. 2. It is incontestible that the property having vested in the State by virtue of the Zamindari Abolition Act, no decree for proprietary possession could be passed in favour of the plaintiffs. It is true that in the plaint there is no mention of the suit land having been the Khudkasht of the mortgagors in the year 1922 and it is also true that the plaint was not subsequently amended. However, the defendants did not resist the suit on that ground. The first appellate Court has for the first time dismissed the plaintiffs' suit on the ground that since they did not establish that they had been in cultivating possession of the land in 1922, no decree for such possession could be passed either. I see considerable force in the argument of Shri Dixit that injustice has been done by deciding that question of fact without an issue having been framed and without giving the plaintiffs an opportunity to lead evidence on it. 3. It is also urged by Shri Dixit that whatever may have been the position regarding cultivating possession of the suit property in 1922, the plaintiffs are entitled to a decree for actual possession of the mortgaged land at least to the extent that they are in the mortgagee's actual possession today. Having anxiously considered this proposition I have formed the view that this argument must be given effect to. 4. On general principles a mortgagee is always a mortgagee. Once a mortgage, the mortgagee cannot create an estate for himself out of the mortgaged property. To whatever extent the mortgagee is in possession of the mortgaged land, on redemption he must deliver that possession to the mortgagor. 4. On general principles a mortgagee is always a mortgagee. Once a mortgage, the mortgagee cannot create an estate for himself out of the mortgaged property. To whatever extent the mortgagee is in possession of the mortgaged land, on redemption he must deliver that possession to the mortgagor. It is true that the mortgagee is entitled to possession unrestricted and undisturbed, as against the whole world except the mortgagor. But when the mortgagor seeks redemption and tenders the mortgage money, at a time when the right of redemption subsists, the mortgagee has neither interest in the property as against him, except the re-payment of the mortgage money. 5. It is enacted in section 60 of Transfer of Property Act that on payment or tender of the mortgage money the mortgagor has a right to require the mortgagee, where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor. Section 62 again lays down that in case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property. In section 63 this right is further extended and the mortgagee is bound to deliver possession not only of the property originally mortgaged but also of every accession. So wide being the right of the mortgagor and so defined being the liability of the mortgagee the latter cannot retain any part of the mortgaged property just on the ground that he obtained actual possession of the whole or any part as mortgagee during the continuance of the mortgage. 6. When the relevant provisions of the Qanoon Mal were in force (up to October 1, 1951) a mortgagee was no "tenant" of the lands [see section 2 (27) of the Qanoon Mal] and he could acquire no occupancy rights in the mortgaged land, whatever might have been the period of his cultivating possession. This is enacted in terms in section 250 of the Qanoon Mal 7. The position which obtained on and after October 2, 1951, is also not helpful to the mortgagee. Section 37 of the M. B. Zamindari Abolition Act confers pucca tenancy rights on an ex-proprietor with respect to the Khudkasht land in his possession. This is enacted in terms in section 250 of the Qanoon Mal 7. The position which obtained on and after October 2, 1951, is also not helpful to the mortgagee. Section 37 of the M. B. Zamindari Abolition Act confers pucca tenancy rights on an ex-proprietor with respect to the Khudkasht land in his possession. Now the word 'Khudkasht' is defined in the act as follows:- "Khudkasht means land cultivated by the Zamindar himself or through employees or labourers and includes Sir land." In the above definition the word 'zamindar' is significant. In the Qanoon Mal, Gwalior State. Samvat 1983, a zamindar is different from a Malguzar. A mortgagee is included in the expression Malguzar, but he is not a Zamindar and it is made clear in section 2 (O) of the Zamindari Abolition Act that words and expressions used in that Act but not defined therein, have the same meaning as assigned to them in the Qanoon Mal. For these reasons a mortgagee does not acquire pucca tenancy rights under section 37 of the Zamindari Abolition Act. At best, he could be accepted by the Government as its 'tenant' simplicter, just because he was found in actual, possession at the time of the Zamindari Abolition. But there is no provision either in the Zamindari Abolition Act or in the M. B. Tenancy Act which prohibits delivery of possession to the mortgagor on redemption. 8. The result of the above discussion is that in the absence of any provisions to the contrary in the revenue law, the general principles of mortgage must be applied to the question under consideration. The inevitable result which follows is that a preliminary decree for redemption cannot be refused to the mortgagor merely on the ground that although the mortgagee is in actual possession of the mortgaged property, yet the mortgagee failed to prove that it was his Khudkasht when the mortgage was effected. 9. Now, if the mortgagees in the present case are in possession of the suit-lands, they are bound to deliver possession to the mortgagors and it does not matter whether they were put in cultivating possession by the mortgagors in 1922 or they obtained possession by ejecting tenants (assuming that there were tenants at that time. 10. In paragraph 1 of the plaints the mortgagors enumerated the specific field numbers which were mortgaged in 1922. 10. In paragraph 1 of the plaints the mortgagors enumerated the specific field numbers which were mortgaged in 1922. The defendants in their written statements generally denied paragraph 1 of the plaint. It was not the case of the mortgagees that the khasra numbers were not mortgaged. A certified copy of the Register of Documents is on record, which also shows the khasra numbers had been specified and enumerated in the mortgaged-deed. 11. The lower appellate Court has relied on two decisions of the Madhya Bharat High Court. In Ramchandra Vs. Murlidhar, 1954 MBLJ 671, the Full Bench has clearly laid down that a suit for redemption is maintainable even after the abolition of the Zamindari. In that decision, clause (d) of section 60 of the Transfer of Property Act is emphasised. It is also pointed out, among several other things, that so long as the mortgagor. can get back his mortgage deed and on acknowledgment as regards the extinguishment of mortgagee's right, his right to continue the suit cannot be taken away and he may be further entitled to the possession at least of a part of the mortgaged property. That decision does not suport the proposition that a suit such as the present one cannot be continued. 12. The other Madhya Bharat case is Khemraj Vs. Jivraj, 1955 MBLJ 1090. In that case all what was held may be reproduced as follows and, in the words of learned Judge himself, that was "deduced from the judgment (i.e. Ramchandra's case) as a corollary, or it may be taken as a converse proposition":- "If there was no land which may be regarded as khudkasht then in redemption suit, after the abolition of the Zamindari, the mortgagor cannot get back his property. So it comes to this that a decree for recovery of possession of the mortgaged lands can be passed only if the lands are khudkasht. If on the other hand there is no khudkasht land in the mortgaged property, it will be erroneous to pass a decree for recovery of possession of the mortgaged land. So it comes to this that a decree for recovery of possession of the mortgaged lands can be passed only if the lands are khudkasht. If on the other hand there is no khudkasht land in the mortgaged property, it will be erroneous to pass a decree for recovery of possession of the mortgaged land. In that case, in my opinion, the proper course for the trial Court will be only to give a declaration as to the rights of the mortgagor for redemption of the property of payment of the mortgage money to the mortgagee and leave the mortgagor to approach the officers concerned for adjustment of the rights of parties, according to the declaration, from the compensation money which is nothing but a substitute for the mortgage security." I have read the whole report with great care. In the first place, it does not appear from the above dictum that it has any application to a case where the mortgagee is in actual cultivating possession of the whole or part of the mortgaged properly. Secondly, the considerations which I have discussed above do not seem to have been convassed there. Thirdly, at any rate, it was accepted by the learned Judge that a decree for redemption could undoubtedly be passed and at least it would have its effect on the question of payment of compensation. By the expression, "the mortgagor cannot get back his property," Obviously the learned Judge means, by reference to proprietary possession, that the mortgagor on redemption cannot be retained the proprietary possession, the same having vested in the State by operation of law; and by reference to cultivating possession of the land, that the same cannot be given to the mortgagor if persons other than the mortgagee are in such possession, they having acquired certain statutory rights under the Zamindari Abolition Act. It cannot be stratched further as this mean that on redemption the mortgagor cannot get even from the mortgagee such possession as the latter holds because that could not be warranted by law. 13. Having discussed both these authorities, I am unable to appreciate what aid can be taken from those decisions in dismissing the plaintiff's suit. It cannot be stratched further as this mean that on redemption the mortgagor cannot get even from the mortgagee such possession as the latter holds because that could not be warranted by law. 13. Having discussed both these authorities, I am unable to appreciate what aid can be taken from those decisions in dismissing the plaintiff's suit. In my view, it will be repugnant to the basic principles of the law of mortgage to allow the mortgagee to remain in possession of any part of the mortgaged property, if mortgage money is duly paid or tendered before the right of redemption is extinguished. Learned counsel for the respondents has not cited to me any provision in the Zamindari Abolition Act or in any other law to the contrary. 14. The first appellate Court has incidentally pointed out a mistake of form in the preliminary decree passed by the trial Judge. There he is right. 15. This appeal is allowed. The judgment and decree of the first appellate Court are set aside. The preliminary decree passed by the trial Judge is restored, subject to this modification that a direction shall be added in the preliminary that the mortgagee shall deliver possession and title-deeds to the mortgagors on their depositing the mortgage money. The plaintiffs shall get their costs from the defendants in this court and in the lower appellate Court. Appeal allowed