Judgment :- 1. Land Tribunal, Puttur by order dated 6.9.2004-annexure A, has rejected the claim of the petitioner on the ground that properties in question in various survey numbers of Survey Village of Puttur are mortgage properties and mortgage extended from 1969 for a period of eight years i.e. till 1977 and that the applicant failed to prove that he was in possession as on 1.3.1974. Heard the counsel representing the parties. 2. As it transpires, 3rd respondent Saraswathi and her mother Honnamma are the mortgagors and one Muthappa Poojary is the mortgagee to whom there was a mortgage for the period 1969 to 1976 by way of usufructory mortgage as per the mortgage deed. It appears, after the mortgage, as per the contention of the petitioner herein, mortgagee has created chalgeni tenancy in his favour as such, by virtue of the same, he continued in possession as a chalgeni tenant as per the records, as is available up to 1.3.1972. Thereafter, in Dakshina Kannada district, as there are no entries as regards continuation of tenancy for several years, there are no entries available but, as per the evidence on record, he continued to be a tenant even as on 1.3.1974 and beyond that. He being a chalgeni tenant under the mortgagee, it binds the mortgagor as a deemed tenant as per S.4 of the Land Reforms Act and also as is enunciated in the judgment of this Court rendered in the case of Basappa K K Vs Land Tribunal, Somwarpet & Anr-1976 (1) KLJ 272. Learned counsel has also relied upon the judgment rendered under the Bombay Tenancy Act as to the position of a tenant under the mortgagee and regarding termination of tenancy of the tenant under the mortgagee, in the case of Dahya Lala & Ors Vs Rasul Mahomed Abdul Rahim & Ors- AIR 1964 SC 1320 . 3. Learned counsel has also relied upon the judgment rendered under the Bombay Tenancy Act as to the position of a tenant under the mortgagee and regarding termination of tenancy of the tenant under the mortgagee, in the case of Dahya Lala & Ors Vs Rasul Mahomed Abdul Rahim & Ors- AIR 1964 SC 1320 . 3. Per contra, counsel representing the 3rd respondent/landlord has relied upon the Division in the case of Shankar Kalyan Kulkarni & Ors Vs Basappa Sidramappa Kolar & Ors-969 (2) MLJ 77 to contend mortgagee in possession does not fall under the definition of ‘deemed tenant’ and that petitioner cannot be treated as a ‘deemed lawful tenant’ in view of the restricted covenant in the mortgage deed to the effect that mortgagee is to only enjoy the property by himself and that it has to be read as lease hold rights cannot be created nor transferred to anybody. In that view of the matter, petitioner cannot be treated as a deemed tenant by virtue of which he can claim occupancy rights stating as on 1.3.1974, he continued in possession as per the evidence. 4. In view of the rival contentions, this Court has to decide in the usual course as to the principles available under the Transfer of Property Act and the rights and liabilities of the mortgagor and the mortgagee. 5. So far as the mortgagor is concerned, necessarily mortgage has to be registered if the transaction is for more than Rs.100/-. In case of a mortgagee, there would be transfer of interest and in case of usufructory mortgage, there will be transfer of possession and the usufructs of the property be enjoyed by the mortgagee. So far as the creation of any interest by the mortgagee in favour of a third person is concerned, there must be some express or implied condition. Normally, once a mortgage always a mortgage. In that view of the matter, the position of a lessee would be that he cannot assert right as a tenant or a deemed tenant to seek occupancy rights on the property on the ground that he was cultivating the property as a tenant under the mortgager or not. 6. Normally, once a mortgage always a mortgage. In that view of the matter, the position of a lessee would be that he cannot assert right as a tenant or a deemed tenant to seek occupancy rights on the property on the ground that he was cultivating the property as a tenant under the mortgager or not. 6. So far as the petitioner who stands as a third party between the mortgagor and the mortgagee in whose favour tenancy is said to have been created by the mortgagee is concerned, in the usual course in the absence of any condition, then necessarily if the tenant is treated as a lawful tenant as per S.2 and also S.4 of the Land Reforms Act, he would be entitled to be a considered as a lawful tenant on proof of his possession and cultivation, payment of gutta, etc. and necessarily as on 1.3.1974, he shall be lawful tenant/deemed tenant and his right would crystallize to seek occupancy rights and that is being recognised by this Court and the Apex Court under the various tenancy laws. 7. In this context, as controversy arose, counsel for the respondent insisted upon the restricted covenant imposed in the mortgage deed. Of course, though in the usual course it is permissible and needless to say that the mortgagee in case of a usufructory mortgage is entitled for possession and enjoy the usufructs, but the fact remains whether he could cultivate the property on his own or through a third person. In the case on hand, what is being noted as per the mortgage deed is, he himself has to keep possession and that binds him not to alienate either by way of lease or some other process. 8. In the circumstances, the petitioner who has cultivated the property in question under the mortgagee cannot be deemed to be a lawful tenant because the covenant restricted the mortgagee not to alienate/transfer the property to be cultivated by a third person and that possession shall be with the mortgagee only. 8. In the circumstances, the petitioner who has cultivated the property in question under the mortgagee cannot be deemed to be a lawful tenant because the covenant restricted the mortgagee not to alienate/transfer the property to be cultivated by a third person and that possession shall be with the mortgagee only. The Tribunal, though on a different footing, held that the petitioner failed to prove as on 1.3.1974 that he was cultivating the property as a tenant, but the fact remains that since he cannot be treated as a lawful tenant and any parting of the possession of the property by the mortgagee in favour of this petitioner and petitioner claiming that he is a lawful tenant cannot be accepted. 9. Petition fails and as such, it is dismissed.