RAM CHANDRA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) AN important question is involved in this case as to whether after the expiry of the period of mortgage or 20 years as the case may be, in respect of agricultural land, whether the mortgagee in possession becomes a trespasser or a tenant ?

(2.) THE present writ petition is against the judgment dated May 11, 1979, passed by the Board of Revenue for Rajasthan Ajmer and the said decision rendered in D.B. Appeal No. TA/68/75/Kota Shankarlal and Ors. v. Ram Chandra. The facts of the case are that on Kalyan was khatedar of khasra No. 89 measuring 15 bighas 17 biswas in village Chainpura. Tehsil Baran District Kota. The said land was under mortgage with the respondents Nos. 4 to 7 since S.Y. 1985, i.e. 1982. The petitioner under registered sale deed dated March 16, 1965, purchased the land in dispute from Kalyan, the recorded khatedar and mortgagor of the land in dispute. He filed a suit Under Section 183 of the Rajasthan Tenancy Act, 1955 (for short, the Tenancy Act) for possession on the ground that as many as 20 years have already expired, the respondents Nos. 4 to 7 have become trespasser and were liable to be evicted as such. The suit was contested by the respondents Nos. 4 to 7 and a plea was raised that they had purchased the land from the original khatedar Kalyan in the year 1950 and since then they are in possession of the same. The trial court framed the issues and under its judgment and decree dated September 16, 1971, in view of the judgment reported in Prabhu v. Ramdeo AIR 1969 SC 1721, held that the petitioner has no right to get a decree for possession against the respondents Nos. 4 to 7. The learned trial court recorded a finding that the agricultural lands in dispute were under mortgage since S Y 1985 with Mathuralal and others. It may be stated that the respondents Nos. 4 to 6 are the sons of Mathuralal. But as already stated earlier, in view of the aforesaid judgment of the Supreme Court the decree was not made in favour of the petitioner. The petitioner filed an appeal against the aforesaid judgment and decree before the Revenue Appellate Authority who under his judgment dated May 9, 1975, allowed the appeal and set aside the judgment decree of the trial court and decreed the suit of the petitioner. A second appeal was taken by the respondents Nos. 4 to 7 before the Board of Revenue and the Board of Revenue reversed the judgment of the Revenue Appellate Authority and it too placed reliance on the aforesaid cake of Prabhu (supra).

(3.) THE question is as to whether the ratio of the Prabhu's case (supra) has been rightly applied in this case by the Board of Revenue or not ? Before we proceed to consider the above question, it will be proper to refer to some relevant provisions of the Tenancy Act. The Tenancy Act as stated earlier came into force on November 15, 1955 i.e. Smvat. year 2012. By that time the mortgage having been created in the year 1928, almost 27 years had expired, under Article 61 of the Limitation Act period of 30 years to redeem the possession of the property mortgaged is prescribed. The said period of 30 years is to commence from the date, the right acrues. There is no material on record what was the duration of the mortgage and therefore it can be said that no period of mortgage was specified. 'Tenant' is defined in Clause (43) of Section 5 of the Tenancy Act and there can be no dispute that except where the contrary intention appears it shall include a mortgagee of tenancy rights also. A mortgagee of the tenancy rights shall continue to be tenant during the subsistence of mortgage as under the other provisions of the Tenancy Act and more so Section 43 of the Tenancy Act, after the expiry of the period specified in the mortgage or twenty years from the date of execution thereof, which ever period is less, the mortgage stands redeemed A look at Section 43 would show that Section 43 deals with mortgage of agricultural land and it may be stated that Khatedari rights can be mortgaged by a tenant within the four -corners of that section. So far as usufructuary mortgage before the commencement of the Tenancy Act, i.e. before November 15, 1955 (is concerned) Sub -section (4) of Section 43 of the Tenancy Act provides that a usufructuary mortgage of any land made before the commencement of the Tenancy Act shall upon the expiry of the period mentioned in the mortgage deed or twenty years from the date of execution thereof, which ever period is lass be deemed to have been satisfied in full without any payment what so ever by the mortgagor and the mortgage debt shall accordingly be deemed to have been extinguished and thereupon the mortgaged land shall be redeemed and possession thereof shall be delivered to the mortgagor from all encumberances. It will therefore be clear that so far as usufructuary mortgages created prior to the coming into force of the Tenancy Act are concerned they stand redeemed as aforesaid at the expiry of 20 years even if the period of mortgage is more than 20 years. It has already been said earlier that in Clause (43) of Section 5 of the Tenancy Act the definition of 'tenant' is subject to except the intention contrary appears, The contrary intention is apparent in so far as mortgagee in possession of the tenancy rights is concerned. Thus, to be a tenant within the meaning of Clause (43) of Section 5 of the Tenancy Act it should be during the subsistence of the mortgage which subsistence can in no case extend beyond a period of 20 years in case the usufructuary mortgage is created before the commencement of the Tenancy Act. The matter would have been different in case before the Tenancy Act came into force the right to redeem is extinguished and in that case it cannot be said that any right is vested to redeem the property and even the transferor has no right to file a suit for possession. But in case the mortgage is subsisting when the Act came into force by virtue of Sub -section (4) of Section 43 of the Tenancy Act after the expiry of 20 years as aforesaid or the period specified in the mortgage, the mortgage stands redeemed free from all encumberances and if that be so, the mortgagee in possession will become a trespasser and will be liable to be evicted Under Section 183 of the Tenancy Act.