JUDGMENT Sureshwar Thakur, J. - The plaintiffs'' suit, for, rendition of a decree for declaration, and, also for rendition of a decree for permanent prohibitory injunction, vis-a-vis, the suit khasra number 109, hence, holding an area of 8-16 bighas, stood dismissed by the learned trial Court, and, in an appeal carried therefrom, by the plaintiffs, before the learned First Appellate Court, the latter Court decreed the plaintiffs'' suit, and, recorded a verdict declaring the plaintiffs, to be, owners in possession of the suit land, only to the extent of 5.10 bighas, besides in respect thereof, it also rendered a decree of permanent prohibitory injunction, wherethrough, the defendants were restrained, from, interfering with the suit property. The defendants/appellants herein are aggrieved therefrom, hence, institute the instant appeal before this Court. 2. Briefly stated the facts of the case are that one Khindu (deceased plaintiff) had instituted a suit for declaration with consequential relief of permanent injunction against the defendant on the allegations that he had been non occupancy tenancy in possession of suit Khasra No 109. The plaintiff had constructed two houses in the suit land in the year 1936, and, had been residing therein. The plaintiff had also constructed one cattle shed in the suit land in the year 1936. The defendant had created usufruct mortgage of the suit land in favour of the plaintiff in the year 1956 for Rs.100/-. The defendant had redeemed the mortgage in 1981. After redemption, the status as tenant of Sh. Khindu, Plaintiff had been revived, and, he had become non occupancy tenant in possession of the suit land under the defendant. The plaintiff had acquired rights of ownership of the suit land with the application of H.P. Tenancy and Land Reforms Act, 1972. The defendant had been Numberdar of revenue estate Sanaur and some other revenue estates. The defendant had been exercising influence over the officials of the revenue department. The defendant had manipulated deletion of entry of tenancy of the plaintiff after redemption of the suit land in 1981 The plaintiff was bound by wrong and illegal entries of the suit land carried out after 1981. The defendant had started interfering with the ownership and possession of the plaintiff over the suit land w.e.f. 1.5.1989. The defendant had been requested not to do so, but without any result. The defendant had started interfering with the ownership and possession of the plaintiff over the suit land w.e.f. 1.5.1989. The defendant had been requested not to do so, but without any result. The plaintiff had, therefore, instituted suit for declaration of his ownership and possession of the suit land. It has also been averred that in case the tenancy of the plaintiff over the suit land was not upheld, he had acquired title to the suit land by adverse possession, since he had been in continuous, open and uninterrupted possession of the suit land w.e.f. 1936. The defendant was sought to be restrained from interfering with the ownership and possession of the plaintiff over the suit land. It had also been averred that in case the defendant was successful in taking forcible possession of the suit land or had been otherwise treated in possession, decree for possession of the suit land be passed in favour of the plaintiff and against the defendant. 3. The defendants contested the suit and filed written statement, wherein they have taken preliminary objections qua maintainability, estoppel, res judicata etc. On merits, the defendant had refuted the tenancy of the plaintiff over the suit land. It had been averred that in 1936, the defendant as also his predecessor-in-interest Shri Mehlar had not been owner in possession of the suit land. The suit had been mortgaged with possession for Rs.100/- in favour of the plaintiff by the defendant in 1940. Consolidation operations had been carried out in the revenue estate Sanaur in 1955-56. At the time of consolidation operations, entry of mortgage of the suit land in favour of the plaintiff under the defendant against amount of Rs.100/- had been carried out. The defendant had redeemed the mortgage in 1981. After redemption, the defendant had been owner in possession of the suit land. The plaintiff could not have acquired rights of ownership of the suit land under the tenancy Act. It had also been averred that the plaintiff had been allotted Khasra No. 222/45/1, 222/45/2 and 222/43/3, measuring 5-8 bighas in the revenue estate Sanaur vide order dated 25.8.1975 passed by the Tehsildar, Ghumarwin. The plaintiff had given land obtained by him by way of Nautor in exchange to the defendant and had obtained a portion of the suit land described in Khasra No.265/109, measuring 5.10 bighas from the defendant. The plaintiff had given land obtained by him by way of Nautor in exchange to the defendant and had obtained a portion of the suit land described in Khasra No.265/109, measuring 5.10 bighas from the defendant. The plaintiff had constructed two houses and a cattle shed in the suit land after having obtained land described in Khasra No.265/109, measuring 5.10 bighas from the defendant. It had been averred that lateron Nautor grant of the plaintiff had been rejected on the complaint of proprietors. The defendant had been compelled to deliver possession of Nautor grant obtained by him in exchange in favour of the State. As such stage, the defendant had taken possession of the suit land. It had been averred that in case the construction of the plaintiff in the suit land was proved to have been carried out prior to exchange, the defendant was entitled to possession thereof by demolition of the construction of the plaintiff. The plaintiff had started interfering with the ownership and possession of the defendant of land described in Khasra No.109/1 measuring 3-6 bighas. As such, the defendant had instituted civil suit No.271/1 of 1986 against the plaintiff in the Court of Sub Judge 1 st Class, Ghumarwin on 25.11.1986. The plaintiff had agreed for decision of afore civil suit of the defendant against him vide statement dated 24.1.1987. As such, civil suit No.271/1 of 1986 of the defendant for permanent injunction had been decreed against the plaintiff. The judgment and consent decree dated 24.1.1987 was stated to be bar to the suit of the plaintiff. The plaintiff could not be said to have acquired title to the suit land by adverse possession since he had been a mortgagee thereof and mortgage stood redeemed in 1981. The plaintiff was not entitled to any relief. 4. The plaintiff filed replication to the written statement of the defendant(s), wherein, he denied the contents of the written statement(s), and, re-affirmed and re-asserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff is in possession of suit land as owner as alleged?OPP. 2. Whether the plaintiff is entitled to a decree for permanent injunction?OPP. 3. Whether the plaintiff in alternative is entitled to a decree for declaration of ownership by virtue of adverse possession?OPP 4. Whether the plaintiff is in possession of suit land as owner as alleged?OPP. 2. Whether the plaintiff is entitled to a decree for permanent injunction?OPP. 3. Whether the plaintiff in alternative is entitled to a decree for declaration of ownership by virtue of adverse possession?OPP 4. Whether the plaintiff is entitled to a decree for possession, if dispossessed from the suit land during the pendency of the suit?OPP. 5. Whether the suit is not maintianable? OPD. 6. Whether the suit has not been valued for the purpose of court fee and jurisdiction?OPD. 7. Whether this Court has no jurisdiction to hear and decide the suit?OPD 8. Whether the plaintiff is estopped to file the suit by his own act, conduct, omission and commission?OPD. 9. Whether the suit is bad for not filing the better particulars?OPD. 10. Whether the suit is barred by time? OPD. 11. Whether the suit is barred by res-judicata? OPD. 12. Whether the part of the suit land measuring 5.10 bighas was exchanged by the defendant with the plaintiff with his land measuring 5.8 bighas and nautor granted in favour of Sh. Khindu was rejected by A.C. 2 nd Grade, as alleged, if so, to what effect? OPD 13. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff(s)/respondent(s) herein. In an appeal, preferred therefrom, by, the plaintiff(s)/respondent(s) herein, before the learned First Appellate Court, the latter Court allowed, the, appeal, and, reversed the findings recorded by the learned trial Court. 7. Now the defendant(s)/appellant(s) herein, have instituted the instant Regular Second Appeal, before, this Court, wherein they assail the findings, recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, on 10 th September, 2003, this Court, admitted the appeal, instituted by the defendant(s)/appellant(s) against the judgment and decree, rendered by the learned first Appellate Court, on, the hereinafter extracted substantial question of law:- 1. Whether the conclusion of the learned first Appellate Court that the plaintiffs were the tenants of the suit land prior to mortgage of the suit property and tenancy revived after redemption of the mortgage is dehors the evidence on record and on the basis of assumptions? Substantial question of Law No.1 : 8. Whether the conclusion of the learned first Appellate Court that the plaintiffs were the tenants of the suit land prior to mortgage of the suit property and tenancy revived after redemption of the mortgage is dehors the evidence on record and on the basis of assumptions? Substantial question of Law No.1 : 8. The jamabandi appertaining to the suit land, vis-a-vis, the year 1944-45, borne in Ex.P-6, and, also the subsequent thereto apposite therewith jamabandis hence appertaining, to, 1948-1949 to 1950-1951, all make consistent reflections qua the predecessor-in-interest of the plaintiff, one, Khindu being recorded as non- occupancy tenant in possession, of, the suit land, under one Mehlar, the predecessor-in-interest, of, the defendants. However, Ex.P-3, unfolds qua an order of mutation bearing No. 68 being attested on 9.6.1956, and, therethrough, the predecessor-in-interest of the plaintiffs, hence, standing inducted, as, a mortgagee in possession of the suit land, against a mortgage debt of Rs.100/-. The efficacy, and, the truth of the afore reflections, borne in the afore alluded exhibits, has, remained uncontested, and, evidence, if any, to rebut the presumption of truth thereof, rather is frail and weak, (a) thereupon, the presumption of the truth, garnered by the entries, borne in Ex.P-6, and, also the subsequent therewith entries appertaining to the suit land, as, borne in the jamabandis appertaining to the years 1948-49 to 1950-51, whereunder, the predecessor-in-interest of the plaintiff one Khindu, stands recorded, as a non-occupancy tenant, hence, acquire apt conclusivity. The mortgage qua the suit land, created under mutation No. 68, borne in Ex.P-3, attested, on 9.6.1956, is thereafter, as unfolded by mutation No.224, attested, on 23.12.1981, borne in Ex.P- 4, rather therein echoed to stand hence redeemed. The redemption of the mortgage qua the suit land under, a, mutation attested on 23.12.1981, is undisputedly a mutation, with, possession of the suit land. The redemption of suit land, as, occurred in the year 1981, under an order borne in Ex.P-4, obviously does thereunder, hence, assume, life on 17.11.1981. 9. The redemption of the mortgage qua the suit land under, a, mutation attested on 23.12.1981, is undisputedly a mutation, with, possession of the suit land. The redemption of suit land, as, occurred in the year 1981, under an order borne in Ex.P-4, obviously does thereunder, hence, assume, life on 17.11.1981. 9. The learned counsel appearing for the aggrieved defendants/appellants has contended with much vigour (a) that assuming prior to 9.6.1956, whereat under a mutation, borne in Ex.P-3, the suit land was mortgaged, vis-a-vis, the predecessor-in-interest, of one Khindu, despite, all the prior thereto reflections rather, unfolding, qua his being recorded, as, a non-occupancy tenant qua the suit land, rather obviously standing effaced, (b) besides furthermore, the plaintiffs also standing defacilitated to contend that after redemption, of mortgage, made through, mutation, borne in Ex.P-4, hence, attested on 23.12.1981, (c) rather not interdicting qua hence unencumbered possession of the suit land, hence, warranting its being restored, vis-a-vis, the aggrieved defendants. The afore submission, has tacit underlinings, qua the pleaded claim of the plaintiffs, that, in the face of the entries existing, upto 9.6.1956, whereat the mortgage qua the suit land was created, (d) and, theirs carrying reflection(s) qua the predecessor-in- interest of the plaintiffs one Khindu, standing reflected as, a, non-occupancy tenant qua the suit land, rather holding no consequential effect, vis-a-vis, their espoused claim, qua, bestowal, of, apt statutory vestment of title also therethrough enjoining rather vindication. 10. 10. The vigour of the afore submission, is, to be tested, (a) on anvil, of, a judgment rendered by the Hon''ble Apex Court in a case titled as Gambangi Applaswamy Naidu and others vs. Behara Venkataramanayya Patro and others, reported in 1985, S.L.J., 100 , the relevant paragraphs No.4, 6 and 8 whereof, are, extracted hereinafter, wherein it stand(s) explicitly pronounced (b) that there cannot be merger of a lease and mortgage, and, even when two transactions, are, in respect of same suit property, (c) upon, a lessee in the suit property acquiring also rights of a mortgagee thereunder, (d) thereupon, the recitals in the apposite mortgage deed, being, enjoined to make explicit or implied expressions qua, upon, creation of mortgage, vis- a-vis, the lessee, hence, the, latter impliedly not renouncing his rights, as, a lessee qua the suit land, (e) whereupon, alone the mortgagor, upon, occurrence of redemption by him, vis-a-vis, the mortgaged debt, would hence without any encumbrances, rather stand entitled to restoration of possession, of, the mortgaged land, (f) AND, would be equipped to also contend, that, the lease being kept in abeyance, and, upon, apt redemption, it hence with all consequential statutory bestowals rather surfacing. The relevant paragraphs No.4, 6 and 8 of the judgment supra, read as under:- "4. Counsel for the appellants urged upon us to accept the view taken by the learned District Judge that the two transactions namely a lease and a usufructuary mortgage could co-exist and there was othing in the two mortgage deeds to suggest that the appellants'' rights as lessee were extinguished either by merger or by implied surrender and in that behalf strong reliance was placed upon the ealrier decision of the Andhra Pradesh High Court in Varada Bongar Raju''s case (supra), while counsel for the respondents contended that the High Court, both in second appeal as well as Letters Patent Appeal, was right in restoring the learned District Munsif''s decision by relying upon the later decision in P. Satyanarayana''s case (supra) and prayed for dismissal of this appeal. 6. In our view the answer to the question raised in this appeal must depend upon whether there was an implied surrender of the lessee''s rights when the usufructuary mortgage was executed in his favour by the lessor-mortgagor. 6. In our view the answer to the question raised in this appeal must depend upon whether there was an implied surrender of the lessee''s rights when the usufructuary mortgage was executed in his favour by the lessor-mortgagor. And this obviously depends upon what was the intention of the parties at the time of the execution of the mortgage deed in favour of the sitting tenant to be gathered from the terms and conditions of the mortgage transaction in light of the surrounding circumstances of the case. It may be stated that in both the decisions of the Andhra Pradesh High Court on which reliance was placed by the respective counsel of the parties in support of his own contention the question was ultimately decided on proper construction of the terms and conditions of the mortgage transactions; in the earlier decision the court took the view that there was nothing in the mortgage deed to suggest that there was an implied surrender of the lessee''s rights while in the later case the court held that the terms of the mortgage deed showed that the lessee had impliedly surrendered his rights. In other words, it all depends upon whether by executing a possessory or usufructuary mortgage in favour of a sitting tenant the parties intended that there should be a surrender of lessee''s rights or not, and only if an implied surrender of lessee''s rights could be inferred then the mortgagor would be entitled to have delivery of physical possession upon redemption but not otherwise. 8. 8. Three or four things become amply clear on a fair reading of the aforesaid document (1) that through the deed commences by reciting that possession of the land has been delivered thereunder it refers to the fact that the original mortgagee (1 st defendant) was actually cultivating the lands as a tenant of the mortgagor on crop share basis; that is to say the rental was payable by the tenant in the shape of a crop share; (2) that the mortgagor had agreed to pay interest at the specified rate of total loan of Rs.250/- and had undertaken to discharge the principal and interest; (3) that the rental of the land payable by the 1 st defendant was to be adjusted against the interest payable by the mortgagor under this deed as well as the earlier deed and the cist payable by him to the Government; and excess, if any, to be paid to mortgagor; (4) that when the principal and interest are fully repaid such payment was to be endorsed on this deed and the deed as also the land shall be "delivered to the possession of mortgagor". It may be noted that the last portion of the document is equivocal in that it does not mention whether on redemption physical possession is to be delivered or symbolical possession is to be delivered to the mortgagor. But under the terms of the deed one thing is clear that during the currency of the mortgage the liability to pay rent to the lessor-mortgagor (albeit to be discharged by adjustment) is kept alive. If anything such a term clearly runs counter to any implied surrender of the lessee''s rights. Secondly, there is no term fixed for redemption of mortgage property which means that it was open to the mortgagor to redeem the mortgage at any time that is to say even within a very short time and if that be so, would a sitting tenant cultivating the lands under a lease, who has obliged his lessor by advancing monies to him to tide over his financial difficulties give up his rights as a lessee no sooner redemption takes place? In our view, it does not stand to reason that he would do so. In our view, it does not stand to reason that he would do so. This circumstance coupled with a face that the mortgage deed keeps alive the lessee''s liability to pay rent during the currency of the mortgage clearly suggests that no implied surrender was intended by the parties." The afore tests, also, enjoined, the, counsel for the aggrieved defendants, to, from the mortgage attested, under Ex.P-3, (a) hence establish that therein, hence, occurring recitals, wherefrom, an inference is drawable qua in contemporaneity, vis-a-vis, its recording, one Khindu, the predecessor-in-interest of the plaintiff, impliedly not surrendering or renouncing his rights, as a lessee, in, the mortgaged suit property. However, a reading of the order of mutation creating, a, mortgage, vis-a-vis, the suit property, and, as borne in Ex.P-3, (b) rather omits to make any communication qua, the predecesssor-in-interest of the plaintiffs, either expressly or impliedly, and, in contemporaneity, vis-a-vis, its recording, not surrendering or relinquishing his rights, as a lessee, in, the suit property/mortgaged property. The afore inference is enlivened, and, gets accelerated momentum, from the further factum, that, in the jamabandis with respect to the suit land, especially, the one(s) prepared subsequent to 1956, upto, the redemption of the mortgaged land, as, occurred, in, the year 1981, under Ex.P-4, (c) rather carrying no clear vivid echoings therein, that, the predecessor-in-interest of the plaintiffs, hence, continuing to pay rent in cash or in kind, to the mortgagor, nor any evidence makes, any display, qua the afore defrayments standing adjusted against the interest payable, vis-a-vis, the principal mortgage debt. The further effect thereof, is, (d) that post 1956, whereat the mortgage was created, vis-a-vis, the predecessor-in-interest of the plaintiffs, and, qua the suit property, rather there onwards, the interest(s) as a lessee, qua the suit property, of, the mortgagee rather stood terminated or extinguished or also stand abandoned, or hence the afore Khindu is inferred, to, impliedly surrender his right as a lessee, in, the suit property, (e) besides, upon the attestation of mutation qua redemption of the suit land, in the year 1981, as made under EX.P-4, hence, in contemporaneity thereto, the predecessor-in-interest of the plaintiffs, was, enjoined to handover vacant unencumbered possession, of, the suit property, to the mortgagor, the predecessor-in- interest of the defendants. 11. 11. A perusal, of, plaint, bearing Ex.D-7, instituted in a previous suit, inter se the predecessor-in-interest, of, the defendants, and, one Khindu, and, with apparently in the afore previous lis, inter se, hence parties rather holding analogity, vis-a-vis, the litigating parties hereat, (a) also with the suit khasra number(s) in the afore suit, and, in the extant suit rather being similar, (b) thereupon,with a valid compromise decree, standing drawn therein, and, as borne in Ex. D-8, hence making a disclosure qua the afore suit being decreed, vis-a-vis, the plaintiff therein/defendants herein, and, the afore decree being anvilled (c) upon one Khindu making a statement on oath, as, borne in Ex. D-9, wherein he discloses qua his would not thereafter, interfering, with the possession, of, the predecessor-in-interest, of, the defendants, vis-a- vis, the suit land, (d) thereupon, the afore decree rendered in the year 1987, hence subsequent to the redemption of the suit property hence, earlier thereto occurring in the year 1981, fully estops the plaintiffs/respondents herein to contend that the defendants are not in possession of the suit land, (e) nor they can contend, that, in contemporaneity to the attestation of mutation qua redemption, made vis--vis the suit property, the defendants, and, or their predecessors-in-interest, did not acquire hence unencumbered possession thereof. As a corollary, the afore estoppel, hence engendered, through a verdict pronounced in a lis, whereunder the parties hold analogity, vis-a-vis, the parties hereat, (f) also wherein the subject matter is analogous, vis-a-vis the subject matter hereat, therethrough, also a inference stands garnered, qua, the plaintiffs being disempowered to contend, that, after 1956, upto, the redemption of the suit property hence occurring in the year 1981, either they or their predecessor-in-interest, despite, his being a mortgagee, vis-a-vis, the suit land, his or theirs hence continuing to also retain their status, as, a lessee(s) therein, (g) and, further effect thereof is that the legally expostulated necessity, of theirs being enjoined to establish qua theirs, not, impliedly surrendering apt right(s), of, tenancy in the suit property, despite, a mortgage being created in their favour, rather obviously remaining unestablished, reiteratedly rather they are estopped to contend, that, no implied surrender of tenancy hence occurring qua the suit land, (i) significantly also they can not contend, that, the lease initially created qua the suit property, importantly, pre 1956 being upto the stage of apt redemption, hence kept in abeyance, also nor they can contend that, upon, apt redemption hence their right(s) as a lessee, in the suit property rather reviving. 12. Be that as it may, reiteratedly, the afore tests, enshrined in the judgment supra, remain unsatiated, vis- a-vis, the evidence existing in the extant case, (a) thereupon, the plaintiffs/respondent, cannot claim, that there was, no merger, in their predecessor-in-interest, and, on his demise, in them, of the dual status, of a, mortgagee as well as a lessee, (b) and, nor they can contend that on anvil thereof, theirs being lessee, vis-a- vis, the suit land, through out the life time of their predecessor-in-interest, and, on his demise theirs stepping, into his shoes, (c) nor on anvil of, the, afore purported, irreverable merger, they can contend that, upon apt redemption, either their predecessor-in-interest or on his demise, they, acquired hence, any absolute indefeasible right, title or interest, as tenants, vis-a-vis, the suit land. 13. The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court, being not based, upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court has excluded germane and apposite material from consideration. 13. The above discussion, unfolds, that the conclusions as arrived by the learned first Appellate Court, being not based, upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court has excluded germane and apposite material from consideration. Accordingly, the substantial questions, of law are answered in favour of the defendants/appellants, and, against the respondents/plaintiff(s). 14. In view of the above discussion, the instant appeal is allowed, and, impugned judgment and decree rendered by the learned First Appellate Court, upon, Civil Appeal No. 17 of 1995, is set aside, whereas, the judgment and decree rendered by the learned trial Court, upon, Civil Suit No. 132-1 of 1989 is affirmed and maintained. Consequently, the plaintiffs'' suit is dismissed. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs. Records be sent back forthwith.