State of Rajasthan v. Dungar Singh — 1965 DIGILAW 62 (RAJ)

MODI, J.—This is a civil regular first appeal by the defendant State in a suit for possession and mesne profits and alternatively for mortgage money. The plaintiff Dungar Singh has also filed a cross-objection. We propose to deal with both these matters by a single judgment. 2. The material facts leading up to this appeal may be shortly stated as follows. The ancestors of defendant Bhanwarlal (who having died is now represented by his son Shankerlal in this appeal) was the Muafidars of half village Khedilia, Tehsil Khamner. By mortgage-deeds Exs.1, 2 and 3 dated Smt. 1948 Asoj Vadi 3, Smt. 1957, Sawan Sudi 2 and Smt. 1958, Sawan Vadi 2 respectively, they mortgaged with possession their half share of village Khedilia with the ancestors of the plaintiff Dungar Singh. The total mortgage money amounted to Rs. 17,121/2/3 and the mortgage was usufructuary. Plaintiff Dungar Singh and his ancestors continued to remain in possession of the mortgaged property some time until the and of 1939 or the beginning of 1940 when they were dispossessed in pursuance of a certain law which was known as Mewar-ke-Karzdar Jagirdron-ka-Kanoon Smt. 1994 (hereinafter called the Act of 1994). This law was obviously enacted to help the indebted Jagirdars of State of Mewar as it then was, and was more or less in the nature of an Act for the establishment of a Court of Wards which usually looks after the estate of minor Jagirdars or those who have been declared unfit to manage their estates on account of any physical or mental infirmity. It is common ground between the parties that defendant Bhawani Lal applied to the State that his Jagir be taken under its direct management under the Act of Smt. 1994 with the result that the plaintiff was dispossessed of his mortgage security. On the 15th December, 1947 the plaintiff served a notice on the Chief Secretary of the Mewar State complaining that the possession of the State over village Khedilia half which was under his usufructuary mortgage and of which he had been dispossessed was wrongful, and, therefore, he prayed for restoration of his possession and for mesne profits but in vain. Consequently he instituted the suit out of which the present appeal arises, on the 28th August, 1948. Consequently he instituted the suit out of which the present appeal arises, on the 28th August, 1948. By this time, the Mewar State had become a part of a Union of States which for facility of reference may be described as the first United State of Rajasthan. In the suit that was so brought, the plaintiff impleaded the Superintendent, Court of Wards, as defendant No. 1 and the aforesaid Bhawanilal as defendant No. 2. Defendants Nos. 3 to 5 were really in the position of plaintiffs being the descendants of the original mortgagees and had been impleaded as defendants only because they had not joined the suit. By a later amendment of the plaint, the second United State of Rajasthan which was the pre-Part B Constitution State of Rajasthan and into which the first United State of Rajasthan including the Mewar State had integrated was also impleaded as defendant No.6. 3. The suit was resisted by the Superintendent, Court of Wards, who filed a written statement raising a number of defences which we propose to mention presently. The State of Rajasthan also filed a-written statement; but for reasons into which we consider it unnecessary to go for the purposes of the present appeal, it was not allowed to join the suit from the earliest stage but was allowed to take part in it from a subsequent stage for which state of things, reference may be made to the decision of this Court in S. B. Revision No. 20 of 1952, dated the 12th Jan., 1956. Defendant Bhawanilal allowed the suit to proceed ex parte against himself and obviously did not defend it. 4. The principal defences which were raised by the Superintendent, Court of Wards, were that the suit was not maintainable for want of the Rajpramukhs previous permission thereto, that the Court of Wards had taken over possession of Khedilia half in accordance with the provisions of the Act of Smt. 1994, and that the possession of the State was, therefore, perfectly lawful. It was also contended that the State had in any case acted in the exercise of its sovereign powers and consequently the plaintiffs suit deserved to be dismissed. It was also contended that the State had in any case acted in the exercise of its sovereign powers and consequently the plaintiffs suit deserved to be dismissed. It was further pleaded that the mortgages of Smt. 1957 and Smt. 1968 were compulsory registrable and having not been so registered, were inadmissible in evidence and that all the three mortgages were faked transactions not supported by any consideration and consequently the plaintiffs suit deserved to be the thrown out. Finally, it was pleaded that the suit was also barred by limitation. 5. The trial court found in the first place that the suit was maintainable. In the second place, it found that it was under the orders of the Government of the former Mewar State that the Court of Wards had taken possession of the mortgaged property. Thirdly, it found that the plaintiffs deprivation of the mortgaged property would not amount to an act of State and was an unlawful interference with his mortgagee rights and therefore the plaintiff was entitled to mesne profits against the State for such period and was within limitation and this was held to be five years. It also found that the mortgages of Smt. 1957 and 1958 were not compul-sorily registrable and were proved to the hilt and that the plaintiff was entitled to the mortgage money from defendant No. 2 under the circumstances. 6. It may be pointed out at this place that by the time the trial court came to give its judgment and decree, the mortgaged property namely Khedilia half was resumed by the State on the 23rd August, 1954, under the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 and consequently the court came to the conclusion that the plaintiff was not entitled to restoration of the property mortgaged to him and his ancestors. Instead it came to the conclusion that the plaintiff was entitled to a decree for the mortgage money amounting to Rs. 17121/2/3 against defen-dent No. 2 and this was further reduced to Rs. 13697/- under the Rajasthan Jagirdars Debt Reduction Act No. 9 of 1957. Further, a decree for Rs. Instead it came to the conclusion that the plaintiff was entitled to a decree for the mortgage money amounting to Rs. 17121/2/3 against defen-dent No. 2 and this was further reduced to Rs. 13697/- under the Rajasthan Jagirdars Debt Reduction Act No. 9 of 1957. Further, a decree for Rs. 4083/14/11 was passed against the aforesaid defendant and the State jointly and severally by way of mesne profit for five years preceding the date of the institution of the suit (as according to the trial court, the limitation for a suit for mesne profits was five years according to Art. 19 of the Mewar Limitation Act of 1932). Aggrieved by this decree, the State alone has filed the persent appeal. 7. It may be pointed out at once that as there is no decree against the State so far as the mortgage money is concerned and a decree in that respect has been passed against Shankerlal, legal representative of Bhanwanilal defendant No. 2 (heir of the original mortgagors), we are not at all concerned in this appeal with the questions relating to the genuineness of the several mortgages or their invalidity on the ground of registration. 8. Be that as it may, it has been strenuously argued before us by the learned Deputy Government Advocate appearing on behalf of the State that the decree passed by the trial court against the State is erroneous and should be set aside. In making this submission, he has relied on a number of grounds and we propose to deal with them in proper order. 9. The first and the foremost point which was raised before us is that the present suit could only have been brought with the permission of the Rajpramukh of the first United State of Rajasthan as it was constituted in 1948 and as no such permission had been obtained, the plaintiffs suit could not be maintained at all. In support of this submission, learned Deputy Goverenment Advocate placed his reliance on the Covenant entered into between the Rulers of the various covenanting states constituting the First United State of Rajasthan including the State of Mewar to which part of Rajasthan the present case relates. In support of this submission, learned Deputy Goverenment Advocate placed his reliance on the Covenant entered into between the Rulers of the various covenanting states constituting the First United State of Rajasthan including the State of Mewar to which part of Rajasthan the present case relates. Art. 17 of the Covenant is in these terms— "Except with the previous sanction of the Rajpramukh, no proceedings, civil or criminal shall be instituted against any person in respect of any act done or purporting to be done in the execution of his duty as a servant of any covenanting State before the date on which the adrninistration thereof is made over to the Rajpramukh." The Covenant appears to have been entered into some time before the 18th of April, 1948. 10. The argument raised by the learned Deputy Government Advocate appears to be plausible on the face of it. But on closer scrutiny, we are of opinion that it is without any force. We would in this connection invite attention to the United State of Rajasthan Administration Ordinance, 1948, (Ordinance No. 1 of 1948) which was promulgated by the Rajpramukh on the 28th April, 1948. The object of this Ordinance was to provide for the administration of the United State of Rajasthan or of the territories of the covenanting states which had agreed to unite and integrate their respective areas in the said state. Sec. 17 of this Ordinance reads as follows:— "(1) The Government of the United State of Rajasthan may sue or be sued by the name of the Government of the United State of Rajasthan through the Chief Secretary or in such other manner as may be directed by the said Government. (2) If at the date of the commencement of this Ordinance any legal proceedings are pending to which the Government of any covenanting State is a party, the Government of the State of Rajasthan shall be deemed to be substituted for that Government." We are disposed to hold the view that once the provision embodied in sec. 17 of the Ordinance of 1948 came to be made in the manner in which it was, it became possible, nay perfectly legal, for any body to sue the Government of the United State of Rajasthan and whatever fetters there might have been on such a right earlier by reason of the Covenant or otherwise, these no longer subsisted. 11. 17 of the Ordinance of 1948 came to be made in the manner in which it was, it became possible, nay perfectly legal, for any body to sue the Government of the United State of Rajasthan and whatever fetters there might have been on such a right earlier by reason of the Covenant or otherwise, these no longer subsisted. 11. Fully granting that the Rajpramukh of the United State of Rajasthan might have reserved rights to himself in the Covenant in this behalf, there was nothing to prevent him as the legislative head of the new State to have waived that power or privilege and this is exactly what seems to have been done by the enactment of sec. 17 of the Ordinance. The learned Deputy Government Advocate attempted to argue that this provision was a mere procedural one and amounted to no more than this that where the Government of the United State of Rajasthan could be sued according to substantive law, then such suit should be brought in the name of that Government through its Chief Secretary or in such other manner as may be directed by the State Government, and that it was not intended thereby to give up the privilege which had been reserved by Art.17 of the Covenant. 12. We are unable to accept this argument as a sound one. On the other hand, we are inclined to hold the opinion that although a part of sec. 17 may be rightly accepted as merely procedural in so far as it provides that the suit against the State may be filed through the Chief Secretary or in such other manner as may be directed by the State Government, that part of it which lays down that the State may sue or may be sued, clearly amounts to this that for any suits to be brought against the State, ho consent of the Rajpramukh would be necessary. 13. In this view of the matter, we are not at all impressed by the argument that it was necessary for the plaintiff to have obtained permission of the Rajpramukh before he could have brought the present suit against the United State of Rajasthan as it then was. We hold accordingly. 14. 13. In this view of the matter, we are not at all impressed by the argument that it was necessary for the plaintiff to have obtained permission of the Rajpramukh before he could have brought the present suit against the United State of Rajasthan as it then was. We hold accordingly. 14. We would next take up the question of limitation because if that plea succeeds then it would not be necessary to deal with the other points arising in the appeal at all. So far as we have been able to understand the learned Deputy Government Advocate, his argument was that once a mortgagee was deprived of his mortgage security by or at the instance of the mortgagors, his only remedy was to bring a suit for the mortgage money and that the only article which applied to such a suit in the Mewar Limitation Act No. 2 of 1958 Samwat was Art.19 which provides, according to his submission, a limitation of five years only—Art.19 reads as follows— dSls nkos^^ftl nkos ds fy;s QnZ esa dksbZ dye [kkl u gks e;kn 8 lky dc ls e;knkqekj gksxh\tc nkos dk gd iSnk gksA** 15. Now we desire to point out in the first place that the limitation provided under Art. 19 is not five years but eight and it seems to us that it was originally provided in the draft Act that such suits should be governed by a five year limitation. But after objections had been invited and considered to the draft Act, the period in question was raised to eight years. Secondly, we should also like to point out that learned Deputy Government Advocate is not correct in his submission that if and when a mortgagee is deprived of his mortgage security, his only remedy is to bring a suit for mortgage money within the meaning of sec. 68 of the Transfer of property Act. As we understand sec. 68, it is a sort of an enabling section and what it really provides for is the various contingencies in which a mortgagee shall have a right to sue for the mortgage money. But this section cannot be construed to mean that such a mortgagee cannot sue for possession of the property or avail himself of either remedies open to him. But this section cannot be construed to mean that such a mortgagee cannot sue for possession of the property or avail himself of either remedies open to him. It is well established that even before the Transfer of Property Act was enacted, where the mortgagee was entitled under the terms of the mortgage to possession and the mortgagor had failed to deliver the same, he had other remedies open to him, such as to sue for possession or to sue for damages for breach of the contract to deliver possession and sec. 68 has not changed the law in any manner in that behalf. Thus in Gankeis vs. Jagat Narain(l) it was held that the remedy provided by S. 68 of the Transfer of Property Act was an alternative remedy and that it did not debar a mortgagee from bringing a suit for possession. The same view appears to have been taken in Harnam Singh vs. Shola Singh(2) and Ram Pudarath vs. Nimar Singh(3). It may ofcourse be added that where a person is entitled to several reliefs on one and the same cause of action and he sues for only one of these, he will be debarred under O. 2, r. 2 C.P.C. from subsequently filing a suit for the other reliefs. We are in respectful agreement with this view. 16. It must, therefore, follow that the plaintiff mortgagee was entitled to bring a suit not only for recovery of his mortgage money but also for recovery of possession if he so chose. And in this view of the matter, the more appropriate articles of the Limitation Act that seems to us to govern a case like the present would be Arts. 7 or 6. Art. 6 provides for suits for recovery of possession of immovable property and the period provided thereunder is 20 years commencing from the point of time when the cause of action arises and Art. 7 governs all suits between a mortgagor and a mortgagee in respect of claims arising out of an unregistered mortgage and this also provides for a period of 15 years limitation commencing from the time when the cause of action arises. The cause of action in the present case arose some time towards the end of 1939 or beginning of 1940 when the mortgagee was deprived of his possession. The cause of action in the present case arose some time towards the end of 1939 or beginning of 1940 when the mortgagee was deprived of his possession. That being so, we have no hesitation in saying that the plaintiffs suit for possession was unquestionably within time when it was brought in the year 1948. We should also like to add that so far as the claim for mesne profits goes, the trial court has decreed the plaintiffs claim only for a period of five years prior to the date of the suit and no more, even though Art.19 prescribes a period of 8 years as discussed above and we are unable to see how a claim like this would be barred by time. Besides, there is no appeal before us on the side of the plaintiff on this part of the case, and, therefore, we need not pursue the matter further. Viewed from all these angles, we are clearly of opinion that the present suit is within limitation. 17. It was next contended by the learned Deputy Government Advocate that the dispossession of the plaintiff was the act of the Superintendent, Court of Wards of the former Mewar State and that even if it was wrongful, the State was not liable. There is no doubt that defendant Bhawanilal was placed under the Court of Wards under the Act of Smt.1994 but the contention that the dispossession of the plaintiff mortgagee qua the mortgagor jagir village was, if at all, made by the Superintendent and that the State was not responsible for the consequences of any such act is hardly acceptable. 18. On a careful consideration of this aspect of the case, we are satisfied that it was under the orders of the Mewar Government that the plaintiff was dispossessed of his mortgage security. This is also the finding to which the learned trial Judge has come. The learned Judge has based his finding on a number of factors to which we shall briefly refer. 19. The first is the plea raised by the Superintendent, Court of Wards, in the additional pleas of his written statement which is to the effect that the Court of Wards had taken over possession of village Khedilia half—the mortgaged property— in accordance with the directions of the Mewar Government. 19. The first is the plea raised by the Superintendent, Court of Wards, in the additional pleas of his written statement which is to the effect that the Court of Wards had taken over possession of village Khedilia half—the mortgaged property— in accordance with the directions of the Mewar Government. Secondly, although the State was not allowed to join the suit from the very beginning, we have its written statement on the record and in paragraph 19 thereof, it has been clearly accepted that the State had dispossessed the plaintiff of the mortgage security though its further contention was that it had done so in the exercise of its sovereign rights with which latter aspect of the case, we propose to deal hereafter. The learned Judge has also stated during the course of his judgment at page|69 of the Paper-book that— "...the position that village Khedilia was assumed by the Court of Wards under orders of Government, is not denied by the Government pleader. It is established that under orders of the Government of the former Mewar State, the Court of Wards took possession of village Khedilia of the share of Bhawanilal Beharilal." That being so, there is no force in the contention that the wrongful act, if any, in this case was that of the Superintendent, Court of Wards of the Mewar State and that the Mewar State itself was not responsible for it. Under the circumstances, we are unhesitatingly of the view that the real responsibility for the plaintiffs dispossession of the mortgage security lies on the shoulders of the Mewar State. 20. The learned Deputy Government advocate further contended, however, that even if we came to the conclusion that it was under the orders of the Mewar Government that the plaintiff has been dispossessed of his mortgage security, the State had full authority to order such dispossession under the Act of Smt. 1994. In the second place, it was also contended that the State had acted in the exercise of its sovereign rights, and, therefore, the plaintiff had no cause of action in the municipal courts of the State. 21. Our attention has been drawn in this connection to the provisions of the Act of Smt. 1994. In the second place, it was also contended that the State had acted in the exercise of its sovereign rights, and, therefore, the plaintiff had no cause of action in the municipal courts of the State. 21. Our attention has been drawn in this connection to the provisions of the Act of Smt. 1994. This Act was obviously enacted to take over the management of Jagirs of Jagirdars who happened to be heavily indebted under the management of a body which is called the "Shishu Hitkarani Sabha perhaps another came for Court of wards. Sec. 6 of the Act lays down that only those estate holders will be entitled to the benefit of this Act who have received their estates as Jagirs from the Ruler of Mewar. Unfortunately, however, the Act contains no definition of the word "Jagi.r", and this has led to a contention in the present case on the side of the plaintiff that the estate held by the defendant mortgagor was not a Jagir but was merely some kind of muafi land which did not fall within the definition of sec. 6 of the Act. Sec. 9 of the Act provides that when a Jagirdar is placed under the Shishu Hitkarni Sabha, a notice shall issue to all his creditors, both private and State departments, to file a list of all their debts against the said Jagirdar in default whereof no court of law shall entertain suits in respect of such debts. Sec. 15 provides that after the total debts of the indebted Jagirdar are ascertained, a scheme will be prepared so as to liquidate these debts within a period of 30 years. By Sec. 16 it is further provided that for such liquidation, the Shishu Hitkarni Sabha would have the authority to sell the movable and immovable property of the Jagirdar with the exception of such property which might have been granted by the State. Then follows S. 17 upon which the learned Deputy Government Advocate lays great stress. This section enacts that after a Jagirdar has been placed under the Court of Wards, no creditor shall file a suit against him in any court of law, and all suits which may have been filed earlier shall be transferred to the Shishu Hitkarni Sabha. With the remaining provisions of the Act, we are not seriously concerned, and, therefore, we shall not deal with them. 22. With the remaining provisions of the Act, we are not seriously concerned, and, therefore, we shall not deal with them. 22. Basing his contention principally on sec. 17 read with the other provisions of the Act to which we have adverted above, the learned Deputy Government Advocate strenuously contended that the plaintiff was completely debarred from filing this suit in the civil courts of the State and that his only remedy lay in seeking his relief under the Act of Smt. 1994. The most important question which arises in this connection is whether the Superintendent of the Shishu Hitkarni Sabha or for that matter the State was entitled to dispossess the plaintiff of his mortgage security under the Act of Smt. 1994. 23. We have carefully read the Act more than once and we are unable to find therein any warrant for the proposition that the Shishu Hitkarni Sabha was or would be entitled to interfere with the property which stood mortgaged to a third party except perhaps with the latters consent. We are fully conscious that when a Jagirdar applies to be placed under the management of the Court of Wards, this would normally mean that the Court of Wards would take charge of his estate and manage it during the period the estate remains under its Superintendence. To say that, however, is one thing. But it is quite another to go further and hold that simply because a jagirdar chose to be placed under the management of the Court of Wards, he should thereby be enabled directly or through the Court of wards to interfere with the possessory rights of a secured creditor. In our considered opinion, that could not be done. 24. Our attention has been invited in this connection to a judgment of the Appeal Committee of the United State of Rajasthan dated the 23rd December, 1948 in appeal No. 82 of 1948, entitled Mst. Dhabhai Shreekrishna vs. Yashwantlal. In this case a like question arose and the possession of the mortgagee over certain jagir property which belonged to a ward who had been placed under the Shishu Hit-karni Sabha had been removed by that body. The mortgagee protested to the Shishu Hitkarni Sabha that his possession should not have been removed, but the latter held that it was entitled to do under the Act of Smt. 1994. The mortgagee protested to the Shishu Hitkarni Sabha that his possession should not have been removed, but the latter held that it was entitled to do under the Act of Smt. 1994. Thereafter the mortgagee went up in appeal to the Revenue Appeal Board. It was contended before the Board that the mortgage was invalid, and, therefore, the Shishu Hitkarni Sabha was entitled to assume possession of the mortgaged property. This contention was repelled and it was held by the Appeal Committee that the Shishu Hitkarni Sabha in a matter like this held more or less the status of a party and that it had no authority by itself to pronounce on the validity or invalidity of a mortgage and that if it wanted a declaration in that behalf, its obvious duty was to have filed a suit in a competent court of law. This judgment rightly brings out the point that the rights of secured creditors could not be interfered with by the Shishu Hitkarni Sabha to their detriment and we take it that the authorities of the United State of Rajasthan should have been quite familiar with the true intendment and effect of the Act of Smt. 1994. 25. As we have already pointed out above the mortgage in this case was a usufructuary one and the mortgagors had undoubtedly handed over possession of the mortgage security to the plaintiff mortgagee. The simple question is: Is there anything in the Act of Smt. 1994 which would justify the dispossession of the mortgagee of his mortgage security? In our considered opinion, there is nothing in this Act which necessarily or even reasonably leads to such a conclusion, and that being so, we are entirely unable to hold that the State or the Shishu Hitkarni Sabha had any authority to dispossess the plaintiff of his mortgage security under this Act. 26. The next question under this head is whether the dispossession of the plaintiff by the State amounts to an act by the State. The answer to this question must be in an emphatic negative, the reason being that there is no scope for the exercise of an act of State between a sovereign and its subjects. 26. The next question under this head is whether the dispossession of the plaintiff by the State amounts to an act by the State. The answer to this question must be in an emphatic negative, the reason being that there is no scope for the exercise of an act of State between a sovereign and its subjects. The position is indeed too firmly established at this date to admit of any doubt or dispute, but if it were necessary to cite any authority for this we would invite attention to Virendra Singh vs. State of Uttar Pradesh (4). 27. In this state of the law, we have no hesitation in coming to the conclusion that when the plaintiff was deprived of the possession of his mortgage security by the State of Mewar and his case did not fall within the four walls of the Act of Smt. 1994, he was fully justified in seeking his redress in the ordinary courts of law, and, therefore, the present suit was competent. We hold accordingly. 28. Learned counsel for the State next argued chat even if we came to the aforesaid conclusions on the points raised by us above, the wrongful act was committed by the then State of Mewar and the present State of Rajasthan could not be saddled with the responsibility for it. In other words, his contention is that the successor State is not liable for any wrong committed by its predecessor. We may state at the outset that this point is sought to be raised by learned counsel for the first time before us during the course of arguments. It is admitted that this point was not raised in the trial court nor made the subject-matter of any issue there, nor has it been raised as a ground in the memorandum of appeal filed on behalf of the State in this Court. But it is contended that despite all time, he is entitled to raise this point even at the present stage as it is a pure point of law. 29. On a careful consideration of the aspect of the case, we do not find it possible to agree with the learned counsel. For, in our opinion, the law is well established that a successor State must be held to be liable for any wrongs committed by its predecessor where the former has affirmed or ratified the wrongful act. 29. On a careful consideration of the aspect of the case, we do not find it possible to agree with the learned counsel. For, in our opinion, the law is well established that a successor State must be held to be liable for any wrongs committed by its predecessor where the former has affirmed or ratified the wrongful act. As we look at the facts and circumstances of this case, the question of ratification is bound to assume very considerable importance in any final verdict on this aspect of the case because even though the dispossession originally was the act of the State of Mewar, it was continued by the various successor States including the first United State of Rajasthan and the second United State of Rajasthan and the Part-B State of Rajasthan. The plaintiff had already commenced his suit as early as 1948 and the Rajasthan State had been impleaded as a defendant some time in 1950. The submission of the learned Deputy Government Advocate in these circumstances that the question of the liability of the successor State is a mere matter of law, has hardly any justification about it because this liability must necessarily rest on the question of ratification by the successor States and we have no doubt whatsoever that that question is a highly intricate question of mixed law and fact. If the question should have been raised on behalf of the State at the proper time, the plaintiff would have had an opportunity of meeting it by leading the necessary evidence. The fact, however, is that neither party has led any evidence on this aspect of the case, and under the circumstances we are disposed to think that we will be inflicting surprise on the plaintiff if we were to allow the defendant State to raise it at this stage. That being so we have not permitted this point to be argued before us at the fag end of this litigation. 30. Yet another point which was sought to be raised before us is based on S. 43(3) and (3) of the Rajasthan Tenancy Act, 1955 (Act No.III of 1955). The relevant portion of sub-sec. (2) of S. 43 is in the following terms— "(2) A usufructuary mortgage of any land made before the commencement of this Act...... 30. Yet another point which was sought to be raised before us is based on S. 43(3) and (3) of the Rajasthan Tenancy Act, 1955 (Act No.III of 1955). The relevant portion of sub-sec. (2) of S. 43 is in the following terms— "(2) A usufructuary mortgage of any land made before the commencement of this Act...... shall upon the expiry of the period mentioned in the mortgage-deed, or twenty years from the date of the execution thereof whichever period is less, be deemed to have been satisfied in full without any payment whatsoever by the mortgagor and the mortgage debt shall accordingly be deemed to have been extinguished and thereupon the mortgaged land shall be redeemed and possession thereof shall be delivered to the mort gagor free from all encumbrances. Sub-sec. (3) is in these terms: "If the mortgagee does not so redeliver the land mortgaged, he shall be deemed to be a trespasser and liable to ejectment in accordance with clause (b) of sub sec. (1) of sec. 183. The contention is that the mortgagee having enjoyed the mortgage for far more than 20 years, it must be deemed that his mortgage was fully satisfied and that the mortgagee could not ask for further payment to be made to him by the mortgagor and the mortgage-debt shall be deemed to have been extinguished. 31. The short answer to this contention in our opinion is that we are not concerned in this appeal with any dispute between the mortgagor and the mortgagee. A decree for mortgage money was passed by the trial court in favour of the plaintiff against the heirs of the original mortgagors and that decree has not been challenged before us. It may also be pointed out at this place that that decree came to be passed before the present section was introduced into the Rajasthan Tenancy Act, 1955, by the amending Act No. 12 of 1961. Under the circumstances it is hardly necessary for us to express any opinion as to what would be the effect of Sec. 43(2) in a case like the present. But ex facie it does seem to us that it cannot have the effect of upsetting decrees passed by competent courts of law, which have been allowed to became final by sheer lapse of time. But ex facie it does seem to us that it cannot have the effect of upsetting decrees passed by competent courts of law, which have been allowed to became final by sheer lapse of time. Apart from that, so far as the controversy in the present appeal is concerned, it arises out of a wrongful dispossession of a mortgagee by a third party and it does not matter whether that third party was a private one or the State itself. In such circumstances, we are entirely unable to understand that if a suit is brought by the mortgagee against such third parties for the recovery of possession or for mesne profits, such a suit can be adversely effected by anything contained in Sec. 43 of the Act of 1955. In this view of the matter, this contention also has no force and we hereby repel it. 32. Lastly the learned Deputy Government Advocate argued that the court below should not have passed any decree by way of mesne profits against the State because there was evidence on the record to show that all the monies realised by the State from the mortgage property had been spent away. It is correct that it does transpire from the plaintiffs own witnesses that the money recovered by the State from the mortgage security in question appears to have been spent away, but that in our opinion, is neither here nor there. There in nothing on the record to show how that money was spent and under whose authority. Certainly the mortgagee was no party to such expenditure and therefore if he was deprived of certain income to which he was entitled in the normal course of things, he cannot be deprived of his right to recover the same simply because some body who realised the property also happened to spend it. There is no force in this point either and we hereby over-rule it. 33. This disposes of the appeal. 34. Turning next to the cross-objection filed by the plaintiff, the only short point raised therein is that the State had recovered in all a sum of Rs. 4538/- in round figures being the income of half village Khedilia for the years 1944-45 to 1953 and had deducted a sum of Rs. 33. This disposes of the appeal. 34. Turning next to the cross-objection filed by the plaintiff, the only short point raised therein is that the State had recovered in all a sum of Rs. 4538/- in round figures being the income of half village Khedilia for the years 1944-45 to 1953 and had deducted a sum of Rs. 453/- as the collection charges at the rate of 10 percent., on the income realised and that the rate at which the collection charges have been deducted is too high. According to learned counsel, the State should not have deducted more than 5 percent of the gross income as collection charges. Learned counsel has not placed any material before us to hold that the charge made by the State was in any manner extravagant. The trial court was of the opinion that the rate charged by the State in this behalf was proper, and, on the whole, we are not disposed to take a different view. The cross-objection therefore also fails. 35. The result is that both the appeal and the cross-objection are hereby dismissed. The State shall pay the costs of the appeal to the contesting plaintiff had as for the costs of the cross-objection we make no order as it relates to a very paltry amount.