MAUJIRAM Vs. GANGARAM

JUDGEMENT

(1.) THIS is a second appeal and is directed against an appellate order of Collector cum Records Officer Nagore dated 22. 3. 60 reversing an order of the Assistant Records Officer Nagore dated 4. 1. 60.

(2.) THE proceedings giving rise to this second appeal appear to have commenced on an application by one Maujiram dated 2. 9. 59. It was alleged in this application that Khasra No. 52 had been mortgaged with the ancestors of the applicant by the ancestors of the non-applicant i. e. Ganga Ram etc. in Samvat Year 1930 for a consideration of Rs. 90/ -. Ever since then this land had been in possession of the applicant and his ancestors; and as the non-applicant or his ancestors never made any attempt to redeem the land within limitation, the title of the applicant to this land had become absolute. On the strength of these allegations he claimed the correction of a Parcha prepared during the course of records operations by way of his name being substituted in place of the non-applicant i. e. Gangaram. THE application was contested by the non-applicant. After holding an inquiry the learned Assistant Records Officer accepted the application and ordered the correction of the Parcha in favour of the applicant. THE view of the learned Assistant Records Officer was that as in the Rajas-than Tenancy Act a mortgagee has been included in the definition of 'tenant' the applicant by virtue of his mortgage had become a 'tenant' and acquired Khatedari right under sec. 15 of the Rajasthan Tenancy Act. From this order the respondent went in appeal before the Collector cum Records Officer. THE learned Collector reversed the finding of the Assistant Records Officer holding that the learned Assistant Records Officer had not correctly understood the law on the point. According to him the learned Assistant Records Officer did not properly read sub-cl. (43) of Sec. 5 wherein tenant is defined and over-looked the significance of an important part of it which is "except when the contrary intention appears". In the context of the facts in this case, according to the learned Collector, the mortgagee could be a tenant only for a period of 10 years and thereafter the mortgage was to be treated as having been redeemed in favour of the mortgagor. THE learned Collector further held that the mortgagee in this case should have in the first instance applied for the foreclosure of the mortgage before he could shut out the mortgagor.