- (1.)THIS appeal has been presented against judgment and decree of the Revenue Appellate Authority, Jaipur dated 22-3 1966.
(2.)THE facts of the case are that Bachan Singh, plaintiff appellant here, filed a suit for redemption of mortage in respect of half of khasra No. 775 of village Khohar, against Ramsingh, defendant, respondent here. Subsequently Mst. Sagra, Birdha and the State of Rajasthan were also impleaded as defendants. THEy are all respondents here. THE suit was originally filed in the Court of Munsiff Behror on 5-7-58 but was ultimately tried by the Asstt. Collector, Behror, who received the case on 22-9-1962. THE trial Court gave a preliminary decree in favour of the plaintiff on 8*3-63. After Ramsingh had admitted receipt of the mortgage money on 21-3-1963, the trial court gave a final decree on 30-3-63. Two appeals were filed by Ramsingh and Birdha on the one hand and Birdha alone on another against the judgments of the Asstt. Collector, Behror dated 8 3-1963 and 21-3-1963. THEse were accepted by the Revenue Appellate Authority on 22-3-1966 and it was ordered that there should be no redemption of mortgage and that if Ramsingh had received Rs. 500/- from the plaintiff, Bachansingh, he should return the amount to him. Bachan Singh has come in appeal against this order.
We have heard the Advocate for appellant Bachansing and respondent No. 3 Birdha. The Govt. Advocate was also heard. Ramsingh and Mst. Sagra were absent despite notice.

The Advocate for appellant argued that the decree of Birdha against Ram Singh was clearly a collusive decree and did not bind his client. It was pointed out that the khudkasht rights in the suit land in question subsisted with Mst. Sagra, who had made a gift of them and other property to Bachan Singh and so he was entitled to sue for redemption of mortgage. R. L. W. 1961 page 231 was cited. The Advocate for respondent Birdha pleaded that Ramsingh was a mortgagee and he could create tenancy. 1959 R. R. D. page 61 was cited. It was contended that with the resumption of biswedari, the plaintiff had no locus standi to a suit.

We have considered the matter. It is clear that the trial Court passed a detailed and reasoned order after considering all the evidence, but the Revenue Appellate Authority practically ignored all the discussion and gave his order on the point of law that right to redeem the land had vested in Rajasthan State Government and Bachansing had no locus standi in this respect. He held that it was not of such importance to ascertain whether the land was in possession of Ram Singh or Birdha though Ramsingh himself had admitted the possession of Birdha. In the eyes of the Revenue Appellate Authority, the question of law would govern the whole case and there was no necessity to consider any other aspect.

We do not agree with the proposition laid down by the learned Revenue Appellate Authority. U/s 5 of the Rajasthan Biswedari and Zamindari Abolition Act, the right title and interest of the Zamindar and Biswedar and any person claiming through him vest in the Government with effect from the date of resumption. This does hot and cannot apply to cultivatory rights. If the biswedar has any khudkahst, he becomes a Malik of that land according to Sec. 29. The same section lay down that a Malik is an equivalent of the khatedar tenants. The question to be considered is if the mortgage made by Mst. Sagra in favour of Ramsingh was in respect of her biswedari rights or her khudkasht. If the former clearly after resumption, she or any person claiming through her cannot sue for redemption. But if the khudkasht rights were mortgaged, they could certainly be redeemed after payment of the mortgage money by Mst. Sagra or any person claiming through her. The numerous witnesses producted by Bachan Singh all support the case of the plaintiff. The jamabandi and mutation of mortgage clearly show that it was the cultivatory possession that was mortgaged. The evidence of Ramsingh himself as also the witnesses produced by him has rightly been held to be inconvincing by the trial court. The decree of 14-7-1958 obtained by Birdha against Ram Singh can have no effect whatever on the suit of Bachan Singh. A. I. R. 1963 Supreme Court page 454 relied upon by the Revenue Appellate Authority itself states clearly that in cases of mortgages, the land included in the subsistant mortgage should be such that on the redemption of mortgage, the proprietor be entitled to have 'khas' possession thereof. This case was decided on the point that there was no subsisting mortgage on the date of vesting and does not apply. 1959 R. R. D. page 61 cited by the Advocate for respondent is also not applicable. It lays down that the Tenancy Act can confer khatedari on tenant of mortgagor, but the mortgagee in question was a mortgagee of proprietary rights. In the present case, the mortgagee himself had pleaded possession of cultivatory rights. His mortgage is of khudkasht rights and was governed by the terms of the mortgage and could not create tenancy. 1961 R. L. W. page 231 applies fully to this case. It is held therein that in cases of khudkasht lands the status of the land-holder was identical with that of a khatedar tenant though he was malik of the holding.

As show on above, the Revenue Appellate Authority based his judgment solely on the idea that after resumption, Bachan Singh had no right to sue. This point having been found to be untenable, the judgment of the Revenue Appellate Authority cannot stand. We, therefore, accept the appeal and set aside the decree of the Revenue Appellate Authority, restore that of the trial Court. .

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