B. P. SINGH, J. ( 1 ) THE plaintiffs suit for redemption of the mortgage has been decreed by the learned Munsiff, Doddaballapur in O. S. No. 74/1975 and that decree has been affirmed by the Principal Civil Judge, Bangalore District, Bangalor" in R. A. No. 26/1977. The defendant has preferred this second appeal before this Court. ( 2 ) THE relevant facts may be briefly stated: The plaintiff's case is that he is the son of late K. Gururayachar who mortgaged the suit lands by way of conditional sale for a sum of Rs. 1,500/- under a mortgage deed dated 20th August, 1951. The defendant contends that this deed Ex. D-1 is not a deed of mortgage by way of conditional sale, but is really a document evidencing an outright sale with right to repurchase. The main question, therefore, which arose for consideration by the Courts-below was as to whether this document Ex. D-1 is a mortgage deed or whether it is a sale deed with a right of repurchase. ( 3 ) THE Courts-below have concurrently held that Ex. D-1 is a mortgage deed and that it evidences a mortgage by conditional sale as envisaged in Section 58 (c) of the transfer of Property Act. The Courts-below have also held that the instant suit is not barred by the provisions of the Karnataka Inams Abolition Act, and further that the suit is not bad for non-joinder of necessary parties. ( 4 ) MR. Raikote appearing on behalf of the appellant firstly contended that the circumstances taken into account by the Courts-below are non-existent, and that there is no pleading or evidence in proof of those circumstances. His first submission, therefore, is that the finding of the Courts-below on this aspect of the matters are based on no evidence. The Principal Civil Judge-the appellate Court, has considered the question at length. He has observed that the mere fact that in Ex. D-l there is a condition that the vendor will pay that amount within a particular period and obtain reconveyance, is not conclusive of the fact that the transaction is a mortgage. He has noticed several judgments of the Supreme Court and has rightly observed that the Court in each case must, having regard to the language of the document and in the light of surrounding circumstances, gather the intention of the parties. He has noticed several judgments of the Supreme Court and has rightly observed that the Court in each case must, having regard to the language of the document and in the light of surrounding circumstances, gather the intention of the parties. He has thereafter considered the fact that the condition of repurchase is embodied in the deed Ex. D-l. He has referred to the Judgment of the Supreme Court in AIR 1954 Supreme Court 345, Chunchun jha v Ebadat AH and Another and observed that it would be reasonable to suppose that a person who, after the amendment of Section 58 (c) of the Transfer of Property act chooses not to use two documents, did not intend the transaction to be a sale, unless that intention was displaced by clear and express words, and if the conditions under Section 58 (c) were fulfilled, then the deed should be considered as a mortgage. The proposition so stated by the learned Principal Civil Judge is fully supported by judgment of the Supreme Court in the aforesaid case and it is not possible to find fault with the reasoning of the learned Civil Judge. The fact that ex. D-1 contains a term which confers upon the mortgagor a right to repurchase the land only after the expiry of 8 years, is a circumstance indicative of the deed being a deed of mortgage. But, this is only one of the circumstances noticed by him. The other circumstance noticed by the learned Civil Judge is that only on the expiry of 8 years, the mortgagor was entitled to the reconveyance of the suit lands. This is not a case where the deed provided that the mortgagor may repurchase the land at any time after paying the full amount. The deed guaranteed enjoyment of the suit lands by the mortgagee for a period of at least 8 years, and only thereafter the mortgagor had a right to claim a reconveyance on payment of the full amount. The learned Civil Judge has observed that the prescription of a longer period is indicative of the intention of the parties to create a mortgage, because in a case of outright sale with a condition to repurchase, a shorter period is normally prescribed. The learned Civil Judge has observed that the prescription of a longer period is indicative of the intention of the parties to create a mortgage, because in a case of outright sale with a condition to repurchase, a shorter period is normally prescribed. In my view the circumstance that the vendor had no right to repurchase the lands within 8 years is strongly indicative of a mortgagor-mortgagee relationship, rather than a vendor- vendee relationship. The third circumstance, which is very significant, and noticed by the learned civil Judge, is that the mortgagor had himself purchased the suit lands in the year 1947 for the sum of Rs. 2,000/ -. This is evidenced by the sale deed which was produced at the appellate stage by the defendant himself. The sale deed was admitted in evidence without objection. The sale deed discloses the fact that the said lands were purchased by the mortgagor four years earlier for a sum of Rs. 2,000/- On the other hand, under ex. D-l the same lands, four years later, have been sold to the mortgagee for a smaller sum of Rs. 1,500/ -. The learned Civil Judge has considered this circumstance to be of considerable importance and supporting the plea that ex. D-l was only a mortgage and not a sale, because the mortgagor was not expected to make an outright sale for a price much lower than the real value of the lands. Counsel for the appellant submitted that there is no evidence to show as to what was the value of the land in the year 1951 when ex. D-l was executed. There is nothing on record to indicate that the value of the land had decreased in the year 1951, and one can take judicial notice of the fact that the value of the lands have been constantly increasing. He submitted that earlier there was a well in the land, but that well had got filled up in due course, and therefore, the value of the land was reduced. It is not possible to go into this question in second appeal. But the circumstance that the amount paid under ex. D-l did not reflect the true value of the lands, is a circumstance in favour of the plaintiff and supporting his case of mortgage. In fact this circumstance may be a clinching circumstance. It is not possible to go into this question in second appeal. But the circumstance that the amount paid under ex. D-l did not reflect the true value of the lands, is a circumstance in favour of the plaintiff and supporting his case of mortgage. In fact this circumstance may be a clinching circumstance. In similar circumstances, the Supreme Court in AIR 1963 supreme Court 1906 held that it was indicative of a mortgage and not an outright sale. ( 5 ) ON the basis of these circumstances the Courts-below have held that ex. D-1 isa deed of mortgage by conditional sale. The circumstances relied upon by the Court- below are relevant and are based upon evidence on record. It is therefore not possible to accept the contention of learned counsel for the appellant that they are not based upon the evidence on record. The deed ex. D-l is on record and not disputed. The sale deed of the mortgagor is also on record and was produced by the appellant himself and admitted in evidence. The circumstances found by the Courts-below flow from these two important documents. It is not possible, therefore, to accept the contention that this finding recorded by the Courts-below is based on no evidence. I, therefore, hold agreeing with the finding recorded by the Courts-below that the document ex. D-1, dated 20th August, 1951 is a mortgage deed and not a sale deed. The plaintiff-respondent, therefore, was entitled to redeem the mortgage and a suit for redemption of the mortgage was maintainable. ( 6 ) IT was then contended on behalf of the appellant that the instant suit for redemption of mortgage was not maintainable in view of the provisions of the karnataka Inams and Certain Inams Abolition Act. The contention was that the only remedy for the plaintiff was to approach the Special Tribunal constituted under the act for conferment of tenancy rights. He could not approach a Civil Court and claim possession of any land of which he claimed to be a tenant. He further submitted that in view of the provisions of the aforesaid Act, the mortgage which was in the nature of an encumbrance stood extinguished and therefore, no suit for redemption of the mortgage was maintainable. He could not approach a Civil Court and claim possession of any land of which he claimed to be a tenant. He further submitted that in view of the provisions of the aforesaid Act, the mortgage which was in the nature of an encumbrance stood extinguished and therefore, no suit for redemption of the mortgage was maintainable. ( 7 ) THE scheme of the Inams Abolition Act is that with effect from the date of issuance of the Notification under sub-section (4) of Section 1 of the Act, all rights, title and interest vesting in the inamdar vest absolutely in the State of Karnataka free from all encumbrances. The relationship of landlord and tenant as between the inamdar and the kadeem tenant or permanent tenant or quasi-permanent tenant stands extinguished. Those persons, who claim tenancy rights in the lands must approach the special Tribunal under Section 10 of the Act which is required to examine the nature and history of all lands in respect of which a person claims tenancy rights and then to decide such claims. It will, thus be appreciated that what is extinguished under Section 3 of the Act are the rights, title and interest of the Inamdar. Logically, therefore, if the inamdar had created an encumbrance such as a mortgage the mortgage would stand extinguished under the provisions of the Act. The same cannot be said in respect of a mortgage which a tenant creates in respect of his tenancy rights in favour of another person. In fact there are provisions to indicate that the provisions of the Act shall not affect any right created by the tenant in any land included in his holding. ( 8 ) LEARNED counsel contended that the document ex. D-1, even if considered to be a mortgage, stood extinguished in view of the provisions of Section 3 (1) (d) of the act. His contention must be negatived because the mortgage was not one created by the inamdar in favour of any person. It was really a mortgage of tenancy rights created by the plaintiff's father in favour of the defendant. It is futile to urge that what the mortgagor had acquired from the inamdar was inamdari interest. The deed ex. His contention must be negatived because the mortgage was not one created by the inamdar in favour of any person. It was really a mortgage of tenancy rights created by the plaintiff's father in favour of the defendant. It is futile to urge that what the mortgagor had acquired from the inamdar was inamdari interest. The deed ex. D-l it-self recites the fact that land revenue was to be paid to the jodidar and that the mortgagee shall continue to enjoy the lands subject to payment of the land revenue to the jodidar. Obviously, therefore, the mortgagor was mortgaging only his tenancy rights for which land revenue was payable. ( 9 ) LEARNED counsel contended that in any event the question of conferment of tenancy rights upon any person claiming such a right was wholly beyond the jurisdiction of Civil Courts and such relief could be granted only by the Special Tribunal under Section 10 of the Act. Learned counsel for the respondent/plaintiff did not dispute this and in view of several Judgment of this Court including 1964 (2) Mys. L. J. 444, 1983 (1) Kar. L. J. 328 and 1985 (2) Kar. L. J. 483, it cannot be disputed that any person, who claims tenancy rights in inam lands must submit his claim before the tribunal under Section 10 of the Act, and it is only the Tribunal which having regard to all facts of the case must decide his claim. I shall, therefore, proceed on the basis that in the matter of conferment of tenancy rights, it is the order of the Tribunal under section 10 of the Act which is final, and which cannot be challenged before a Civil court, nor can a claim for the conferment of tenancy rights be entertained by a Civil court. In the instant case it is not in dispute that the defendant did make a claim in respect of the suit lands before the Tribunal under Section 10 of the Act. It is also not disputed that much before the filing of the suit, in the proceeding under Section 10 of the Act, the Special Tribunal had passed an order which recognised the occupancy rights of the defendant/appellant in respect of the suit lands but subject to the mortgage. The correctness of this order cannot be challenged in the instance proceeding. It is also not disputed that much before the filing of the suit, in the proceeding under Section 10 of the Act, the Special Tribunal had passed an order which recognised the occupancy rights of the defendant/appellant in respect of the suit lands but subject to the mortgage. The correctness of this order cannot be challenged in the instance proceeding. It is not disputed that neither the plaintiff nor the defendant challenged this order. The order has attained finality and binds the parties. If the order of the tribunal is taken as it is, it only means that the defendant/appellant will continue to possess the suit lands subject to the mortgage, meaning thereby that he shall continue to possess till such time as the mortgage is not redeemed. Such an order obviously postulates that defendant/appellant is in possession of lands in respect of which his mortgagor could claim tenancy rights under the Act. Learned counsel for the appellant submitted that the part of the order which makes his rights subject to the mortgage can be ignored by him. He submitted that such a condition is inconsistent with the provisions of the Act. I find no merit in this contention. If a person entitled to tenancy rights, other than the inamdar, creates an encumbrance by mortgage, such an encumbrance is not extinguished under the Act. The mortgagee's possession is on behalf of the mortgagor and subject to the mortgage. This is precisely what the tribunal held in a proceeding under Section 10 of the Act. The order passed by the tribunal under Section 10 of the Act presupposes the right of the mortgagor to claim tenancy rights, but concedes the right of the mortgagee to continue in possession till such time as the mortgage is redeemed. When the order proceeds on this basis, it is not open to the mortgage to contend that he may ignore the condition and accept the benefit under the remaining part of the order. The order in its entirety is either legal or not legal. In any event, the correctness of that order cannot be challenged before a civil Court. I, therefore, do not propose to make any observation about the correctness of this order, and I must proceed on the basis that the order as it is legal and valid. The order in its entirety is either legal or not legal. In any event, the correctness of that order cannot be challenged before a civil Court. I, therefore, do not propose to make any observation about the correctness of this order, and I must proceed on the basis that the order as it is legal and valid. ( 10 ) IT is thus apparent that in terms of the order passed under Section 10 of theact, the defendant is entitled to possess the suit land subject to the mortgage. This implies that the mortgagee has a right to redeem the mortgage. Logically, therefore, if the mortgagee refused to redeem the mortgage, the mortgagor shall have a right to file a suit for redemption of the mortgage. Such a suit is not barred under the provisions of the Act, because it proceeds on the basis of the order passed under section 10 of the Act, and not contrary to it. I am, therefore, of the view that in the facts and circumstances of this case, the suit for redemption of the mortgage is not barred by the provisions of the Act. ( 11 ) LEARNED counsel for the appellant lay great stress on the fact that ex. D-1refers to the mortgagor as the owner of the land who had purchased the land from the jodidar. The document does not mention the mortgagor as the tenant of the suit lands. According to him, it is no ones case that the mortgagor was a tenant of the suit lands. The use of the word 'owner' in respect of agricultural lands is not of much significance, because, even a tenant usually describes himself as the owner of the land, though technically he may only be the tenant of the land. What has to be seen is the nature of the right conferred upon the mortgagor by the inamdar. In the instant case as I have found earlier, there is nothing to show that what was sold was the inamdari right or interest. What appears from the record is that the inamdar conferred tenancy rights upon the mortgagor. ( 12 ) IT was then contended that the defendant/appellant was not in possession of the suit lands. In the instant case as I have found earlier, there is nothing to show that what was sold was the inamdari right or interest. What appears from the record is that the inamdar conferred tenancy rights upon the mortgagor. ( 12 ) IT was then contended that the defendant/appellant was not in possession of the suit lands. In a partition in the family of the defendant/appellant, the suit lands had fallen to the share of his brother, and that brother was not a party in the instant case. It was, therefore, submitted that in the absence of the person who was in actual possession of the suit lands, the instant suit was not maintainable. It is not necessary for me to go into this question because the Courts-below have concurrently disbelieved the story of partition set up by the defendant. His witness D. W. 1 has not been believed by the Courts-below. This being a pure finding of fact, the appellant is not entitled to question such finding in second appeal. In the result, this appeal is dismissed. There will be no order as to costs. --- *** --- .