JUDGMENT M.M. Gopal, Member. - This is a second appeal against order of Additional Commissioner dated August 20, 1983. 2. The suit was filed by Mahendra Nath Tewari against Brahma Deo and others in which written statement was filed and then the case was decided by Assistant Collector, 1st Class, Ballia on August 25, 1975. The appeal was filed and that appeal was decided by the Additional Commissioner on August 20, 1983. 3. The facts of the case are that a suit under Sections 60/180 of U.P. Tenancy Act has been filed on November 24, 1973 by Mahendra against Brahma Deo. It was alleged that he was Khudkasht-holder of the plot in suit because the proprietor Ram Dutt father of Vijai Bahadur has mortgaged the plot on October 25, 1922 with possession and he being mortgagee in possession became Khudkasht-holder of the plot in suit. The plot in question is river bed land and generally goes under water. 4. The suit was filed under Sections 60/180 of U.P. Tenancy Act. From the relief sought it is clear that it is not for the declaration of the right of the plaintiff but he declaration that the opposite party is not the tenant of the land and nor the defendant is in possession and alternatively if he is found in possession, he may be ordered to be ejected under Section 180 of the U.P. Tenancy Act. On May 4, 1974, Brahmadeo filed written statement and denied the claim of the plaintiff and also alleged that the land had been settled with Vijai Bahadur and therefore, he became the tenant of Vijai Bahadur and acquired right. 5. The suit was decreed by S.D.O. on August 25, 1975 and it was held that Mahendra Nath Tewari was mortgagee in possession and became the land-holder as within 6 months or 3 years, the mortgagee was not dispossessed. 6. The learned Additional Commissioner by his judgment dated August 20, 1983 allowed the appeal and held that Mahendra plaintiff was not the land-holder because he was a mortgagee and the mortgagee is always a mortgagee and he also said that only plot was mortgaged and not the Khewat or proprietary right. 7. 6. The learned Additional Commissioner by his judgment dated August 20, 1983 allowed the appeal and held that Mahendra plaintiff was not the land-holder because he was a mortgagee and the mortgagee is always a mortgagee and he also said that only plot was mortgaged and not the Khewat or proprietary right. 7. From the perusal of the aforesaid judgments and the relevant allegations of the parties concerned it is clear that Vijai Bahadur or his father Ram Dutt was the zamindar of the land in suit and in the concerned area Zamindari Abolition Act has not yet been enforced. It is also clear that the land in suit was the Sir of Ram Dutt and he mortgaged the same in the year 1922. In the mortgage deed dated October 25, 1922 it is written in the middle as translated by the learned counsel Sri Hari Shanker. c[kq'kh vkSj jtkeUnh fy[krs gSa fd [kqndkLr djsa rFkk tks mRiUu djsa Lo;a ys rFkk ykxr ljdkj dks tek djsaA It is clear that the mortgagee in possession became land-holder if the land in suit and the defendant is recorded for the first time in 1380 fasli with 2 years' possession. The suit was filed on November 24, 1973 i.e. 1381 fasli and hence it cannot be said that the suit was filed beyond time. 8. From the side of the plaintiff-appellant Mahendra Nath Tewari 3 witness were examined. Ram Asis Bhaiya, Gauri Gir and Mahendra Tewari plaintiff himself and they have stated that it was cultivated as Khudkasht of the plaintiff and the land for the last two or three years was under water. From the side of the defendant D.W. 1 Nand Bahadur and D.W. 2 Shiv Kumar Rai defendant himself have been examined. D.W. 1 is only 35 years old and he has stated that land was cultivated by Shiv Kumar and Shiv Kumar has stated that he cultivated the land for several years but no documentary evidence to support the contention of these two witnesses had been filed. Apart from the documents it is clear that his possession was recorded from the year 1380 fasli. 9. From any angle it cannot be said that the defendant had acquired any right. Apart from the documents it is clear that his possession was recorded from the year 1380 fasli. 9. From any angle it cannot be said that the defendant had acquired any right. So far as the ex-parte decree under Section 59/61 in suit No. 35 is concerned, in that decree plaintiff was not a party, hence it cannot be binding upon the present plaintiff Mahendra Nath Tewari. 10. It has been argued before me that the plaintiff-appellant Mahendra Nath Tiwari is Khudkasht-holder after the usufructuary mortgage dated October 25, 1922 and is as such in the position of a land-holder and that the defendant-respondent Shiv Kumar Rai who has obtained an ex-parte decree against Vijai Bahadur (who is son and successor of Ram Dutt the original mortgagor) has not got any legal right as against the mortgagee the plaintiff-appellant Mahendra Nath Tewari on the basis of that decree in as much as the plaintiff-appellant Mahendra Nath Tewari was no party to it. 11. The learned counsel for the defendant-respondent maintains that the plaintiff-appellant is a mere mortgagee and continued to be a mortgagee and continued to be a mortgagee and that the ex-parte decree dated January 16, 1967 has recognised the defendant-respondent Shiv Kumar Rai as tenant and as such the plaintiff-appellant is not a land-holder and on the other hand the defendant-respondent is a lawful tenant. 12. In 1922 North West Provinces Tenancy Act of 1901 was in force and Ram Dutt was the proprietor and the plot in dispute was Sir land situated in district Ballia. When he transferred the plot by means of usufructuary mortgage dated October 25, 1922 ex-proprietary tenancy right arose under Section 10 of the aforesaid Act by operation of law with the consequences that the mortgagor became entitled to actual cultivatory possession and the mortgagee became entitled only to realise concessional rent from the mortgagor as provided under law. There is no satisfactory evidence that the mortgagor continued in possession or exercised ex-proprietary rights in any other manner nor is there any evidence to show that the mortgagee got rent fixed on the plot or realised any rent from the mortgagor nor was the mortgagor even entered in the village papers as ex-proprietary tenant from 1922 when he made the mortgage upto 1972 when the ex-parte decree dated January 17, 1967 was obtained by defendant-respondent Shiv Kumar Rai's father Brahmadeo. Thus the conclusion is that the notional rights of ex-proprietary did not subsist in favour of the mortgagor after the expiry of six months or 3 years limitation subsequent to 1922. 13. For the first time the name of Brahma Deo Rai finds place in 1380 Fasli with a period of two years, hence the suit was filed within limitation. 14. It is not disputed by any of the parties before me that the U.P. Tenancy Act (which had come in the place of Agra Tenancy Act of 1926) continued to apply to the instant suit even though filed after the enforcement of Zamindari Abolition Act the Z.A. Act is not applicable in the area situated in the concerned village of the suit. 15. The plot, therefore, continued to be in the nature of Khudkasht of the mortgagee who was land-holder or all intents and purposes by virtue of mortgage of 1922. The mortgagee had led evidence showing that he is still in possession. At all events the case of the defendant-respondent that he has been in possession even from before the ex-parte decree in favour of his father Brahmadeo is hardly acceptable. Hence the mortgagee has been in possession and the decree in favour of Brahmadeo of the year 1967 did not create any legal rights in his favour as against the plaintiff-appellant who was no party to the said decree. 16. Reasonable conclusion, therefore, is that the mortgagee Mahendra Nath Tewari has been in possession as the Khudkasht-holder and neither Shiv Kumar nor his father Brahmadeo had retained possession over the plot. It is, therefore, clear that the judgment of the learned Additional Commissioner is wrong and is based on irrelevant facts, therefore, he committed jurisdictional error. 17. I, therefore, set aside the judgment of the learned Additional Commissioner dated August 20, 1983 and maintain the judgment of the order of the learned S.D.O. which is correct. In view of chequered history of the case parties should bear their own costs throughout.