GAJANAND Vs. RAMESWARLAL

JUDGEMENT

(1.) THIS is a second appeal against appellate order dated 14. 6. 64 of Revenue Appellate Authority, Udaipur. The facts of the case are that Gajanand, appellant here, filed a suit on 14. 12. 59 under sec. 43 of the Rajasthan Tenancy Act in the court of Assistant Collector, Bhilwara for redemption of mortgage. It was stated that Rameswar & Sohanlal sons of Mathuralal (defendants No. 1 and 2 in the court of A. C. , Bhilwara) were in Gokul's line, who was entered as holder of mafi Sasnik of 5 bighas 12 biswas in village Banera and in Smt. 1956 (A. D. 1899) mortgaged this land on behalf of himself and others, with possession, in favour of Daluram and Khemraj. It was further stated that Rameswar and Sohanlal aforesaid were the only survivors in the line of mortgagors and they had sold the mortgaged land to Gajanand on 7. 2. 57 for Rs. 1000/ -. It was further stated that Madanlal and Sohanlal sons of Laluram Baldeva defendant No. 3 and 4 in the court of A. C. Bhilwara were the descendants of Laluram Khemraj and present possessors of the mortgaged land. They had been asked to give the land back free of charge as they had realised the mortgage money many times over but had not complied with this demand and so Gajanand, as successor in interest of Rameswar and Sohanlal sons of Mathuralal, prayed that the land be got handed over to him free of charge after redemption from mortgage. In me alternative it was declared that the plaintiff was prepared to pay back if any part of mortgage money was found payable. After framing issues and taking evidence the Assistant Collector ordered on 12. 5. 62 that the land in dispute should be redeemed and given to Gajanand without repayment of mortgage money but Gajanand should pay Rs. 300/- to Madanlal and Sohanlal (defendants No. 3 and 4) on account of expenditure incurred by them on the proper upkeep (lqj{kk) of the land. Madanlal and Sohanlal aforesaid, went in appeal to the Revenue Appellate Authority Udaipur and succeeded and hence this second appeal by Gajanand.

(2.) COUNSEL for the parties have been heard and we have perused the record. COUNSEL for the appellant argued that mafi as well as Khadam (Khatedari) rights had been mortgaged, that the lower appellate court was wrong in holding that the mafidar had no separate and separable rights of khadam and that the rights of Khadam had been merged in mafi rights. It was pointed out that respondents nos. 3 and 4, Madanlal and Sohanlal, had in their written statement at paras 3 and 4 taken the ground that all rights along with khatedari had been mortgaged and this very tact had been stated by Madanlal in his deposition. The finding of the lower court that a landholder cannot be a tenant and he cannot be a landholder of the same land at the same time was contended to be unfounded. ILR 1954 Raj. 1, 1958 Patna 589 (Brijnandan Singh vs. Sahu and others), 1957 RLW, p. 203 (Hansraj vs. Pyarchand), 1963 RRD p. 188 (Mogji vs. Indrajeet Singhji), 1964 RRD 137 (Panna and others vs. Khet Singh) were cited. It was argued on behalf of the respondents (really respondents No. 3 and 4) as respondents No. 1 & 2 Rameshwar and Sohanlal sons of Mathuralal have throughout admitted the plea of the appellant), that the mafidar could not have khadam rights had mortgaged his mafi rights and when these came to an end in the resumption of Mafis he had nothing more to do with the land and the khatedari remained with his clients. It was argued that the proposition of law laid down by the lower appellate court was well-founded. Mortgage as well as lease require two parties and are bilateral acts and the mafidar cannot create a tenancy which is a lease, in his own favour. The following authorities were cited - RLW 1955 p. 411 (Daulatsingh vs. State of Rajasthan) RLW 1961 p. 369 (Bhagwan Sahai vs. State of Rajasthan) AIR 1958 p. 941 (Puri vs. Sona) and Secs. 58 and 105 of the Transfer of Property Act AIR 38, 1951 S. C. p. 186 (Jha and others vs. Singh and other)