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1968 DIGILAW 117 (RAJ)

Mangia v. Mst. Para

1968-07-30

G.B.K.HOOJA, MOHINDER SINGH

body1968
This is a second appeal under Sec. 224 of the Rajasthan Tenancy Act, 1955 against the order of the Revenue Appellate Authority Kota dated 30th September, 1964, passed in appeal against the order of the Sub-Divisional Officer, Sawai Madhopur dated 6th April, 1964. Briefly stated the facts are that the respondent Mst. Para had sued Shri Mangia in the Court of Sub Divisional Officer, Sawai Madhopur on 18-7-61 for redemption of her two mortgaged fields situated in village Needarda, Tehsil Sawai Madhopur. She had claimed that Khasra No. 188 (area 9 bighas and 2 biswas) and khasra No. 181 (area 2 bighas and 15 biswas) are in her khatedari and about 12 years back (1950 or so) she had mortgaged them to Shri Mangia for a sum of Rs. 900/-and it was a case of usufructuary mortgage. Shri Mangia refused to redeliver possession of this land to Mst. Para and so she instituted a suit against him The land is still in Shri Mangias possession. According to Mst. Para the mortgage deed was written by one Shri Shaironlal, Patwari in the bahi of Shri Mangia which is in his possession. The mortgage deed was not registered and it has not been produced. Accordingly, the terms of the mortgage deed are not available. Shri Mangia flatly denies the khatedari rights of Mst. Para over this land as well as the very fact of the mortgage. He claims himself to be khatedar of this land. After looking through the evidence oral as well as documentary, the Sub Divisional Officer Sawai Madhopur came to the conclusion that Mst. Para did mortgage the two fields to Shri Mangia in the Smt. year 2006 for Rs. 900/-and that these fields are in her khatedari. The Sub Divisional Officer, Sawai Madhopur decreed the suit for redemption of the mortgaged land on payment of the mortgaged money of Rs. 900/-to Shri Mangia. The appellant went in appeal in the Court of the Revenue Appellate Authority, Kota which again held that the two fields, in question, had been mortgaged for Rs. 900/-by Mst. Para to Shri Mangia in Smt. year 2006. The Revenue Appellate Authority, Kota upheld the order of the Sub Divisional Officer and dismissed the appeal. We have seen the record of the case and have heard the counsel of both parties. 900/-by Mst. Para to Shri Mangia in Smt. year 2006. The Revenue Appellate Authority, Kota upheld the order of the Sub Divisional Officer and dismissed the appeal. We have seen the record of the case and have heard the counsel of both parties. It is borne out from the documentary and oral evidence produced in the trial court that the two fields, in question, are in the khatedari of Mst. Para and that she mortgaged these fields to Shri Mangia for Rs. 900/-in the Smt: Year 2006. There is evidence to show that she had mortgaged the same fields earlier to one Nanji in the Svt. year 2004 and after 2 years of this transaction, she got them redeemed and mortgaged to Shri Maniga. There are corroborative entries in the khasra girdawari both as to the khatedari and as to the mortgage. The main question, however, is whether the Sub Divisional Officer, Sawai Madhopur and later on the Revenue Appellate Authority, Kota could order redemption of the mortgaged lands. There has been some discussion before this court as to what is the type of mortgage that was entered into. The definition of usufructuary mortgage, as given in the Transfer of Property Act, 1882 is as follows: "Sec. 58 (d) Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage money, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest, or in payment of the mortgage-money, or partly in lieu of interest or partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee as usufructuary mortgagee." It is evident that this was an usufructuary mortgage. The respondent in her original plaint dated 18 7-61 to the Sub Divisional Officer Sawai Madhopur had pointed out that the land in question, was mortgaged to Shri Magia and he was given possession, so that he could use this land and take its profits. The evidence available in the case does not indicate any other type of mortgage. The respondent in her original plaint dated 18 7-61 to the Sub Divisional Officer Sawai Madhopur had pointed out that the land in question, was mortgaged to Shri Magia and he was given possession, so that he could use this land and take its profits. The evidence available in the case does not indicate any other type of mortgage. Sec. 43(2) of the Rajasthan Tenancy Act, 1955 dealing with the mortgages is reproduced below : — "An usufructuary mortgage of any land made before the commencement of this Act or in pursuance of the provision contained in sub-sec. (1) 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 mortgagor free from all encumbrances." It would, therefore, be seen that such mortgages can only be redeemed upon the expiry of the period mentioned in the mortgage deed or after 20 years from the date of its execution, whichever period is less. In the present case the weight of evidence points out that the mortgage with Shri mangia was executed in Smt. year 2006(1949-50) before the promulgation of the Rajasthan Tenancy Act, 1955. The mortgage deed has not been produced as it is said to be in the possession of the appellant. He is not producing it as he is denying the very fact of mortgage. It is, therefore, not possible to examine the terms of the mortgage. Accordingly, the mortgage could only by redeemed after 20 years from the date of its execution as claimed by respondent that is by 2026 (1969-70). The net result is that at the present time, Revenue Court cannot afford any relief regarding redemption of this mortgage. In the case of Bher vs. Kesarsingh (1966 RLW 305), the High Court of Rajasthan had held that a suit for redemption of tenancy holding mortgaged with possession before the period mentioned in the mortgage deed or 20 years, whichever is earlier is not covered by any section of the Rajasthan Tenancy Act, 1955, and so relief can not be provided by Revenue Courts. It is only the Civil Courts who can be approached in this matter. The two learned lower courts have discussed the legal position in detail, but somehow failed to appreciate the main point involved in this case i.e. whether the Revenue Courts can really give any relief in redeeming such lands under the provisions of the Rajasthan Tenancy Act, 1955. As discussed earlier, under the Rajasthan Tenancy Act, 1955 no relief in any case can be considered in this cases till Smt. year 2026 (1069-70). In view of the above legal position, the orders of the Court below cannot be sustained. In the result, the appeal is accepted.