- (1.) CIRCUMSTANCES leading to this revision are as follows: - The opposite party preferred an application for re-instatement along with compensation over the disputed land with the allegation that he has been cultivating it for a number of years but had been wrongfully dis-possessed therefrom by the applicant on 11. 8. 5 8. To this he also added a prayer for the grant of a perpetual injunction which was probably never pressed during the proceedings. The application was contested by the applicant on the ground that the land had been mortgaged with the opposite party who had cultivated only during the periods of the subsistence of the mortgage, but that the same had been got redeemed about two years back and that the land was no longer in cultivatory possession of the opposite party. He denied having dispossessed the opposite party on 11. 8. 58 and contended that the date had been alleged to bring the application within limitation. The enquiry revealed that the land had been mortgaged with the opposite party by the applicant and that it had been redeemed in Chet Svt. 2012. It was also revealed from the statements of the parties that when the mortage money was paid by the applicant to the opposite party for getting the land re-deemed, the opposite party made a request to the applicant that he should be allowed to continue cultivating the land. The applicant acceded to this request and let the opposite party continue cultivating the land for one year on payment of rent. It was also found that the applicant forcibly took possession of the land when the opposite party did not relinquish possession of the disputed land after the expiry of that period. A plea was also raised by the applicant that a part of the land had been mutated in the name of Shri Krishan, his minor son, and that he had not been impleaded as a party to the proceedings. The learned trial court framed two issues - (1) whether the opposite party had been cultivating the disputed land for a number of years and had been wrongfully dis-possessed there from by the applicant on 11. 8. 1958 (2) whether the land had been mortgaged with the opposite party and had been re-deemed about two years back and had been continuing to be in possession of the applicant since then. The learned trial court held that the disputed land though re-deemed in Svt. 2012, continued to be in possession of the opposite party for two years more at his own request and that this possession could be deemed only to be that of mortgrgee with possession. He further held that as the mortgage money hed been paid the applicant could enter forcibly on the disputed land when the opposite party had not relinquished possession in Svt. 2014 itself and, therefore, the applicant could not be called to have wrongfully dis-possessed the opposite party. On the other hand, the learned trial court held that the applicant had taken possession of the land after expiry of the term for which the opposite party had been allowed to remain in possession thereof. It was also timber held by it that Shri Krishna should have been impleaded as a necessary party in the case. Accordingly, he dismissed the application. In appeal the learned Commissioner Kota observed that as admitted by both the parties the disputed land continued to be cultivated under a mortgage upto svt. 2012 by the opposite party and that he continued to cultivate it for two years more even after payment of the mortgage money in Svt. 2012. He further observed that the main question for determination was whether this possession of the opposite party for two years after the payment of the mortgage money was as a mortgagee or as a tenant. His finding was that having received the mortgage money the opposite party could not be taken to remain in possession as a mortgagee. He, therefore, held this possession of the opposite party to be as a tenant. He further held that it was not necessary to implead the son of the applicant as a party. Accordingly, he held that as a tenant the opposite party could not have been dis-possessed forcibly by the applicant and ordered the re-instatement of the former after setting aside the judgment of the learned trail court. Hence this revision.
(2.) IT has been very vehemently contended on behalf of the applicant that his statement has been mis-read by the learned Commissioner inasmuch as he had failed to take notice of his clear deposition that he had not allowed the opposite party to continue to be in possession of the disputed land after payment of the mortgage money as a tenant, but that he had allowed him to continue remaining in possession at his own request only temporarily. The contention is that the learned Commissioner was therefore entirely wrong in holding opposite party to be a tenant of the disputed land. IT has also been forcibly contended that having paid the mortgage money the applicant had every right to enter back upon the disputed land even by using force, if necessary, and that he could not be called to have committed any trespass thereby. The non-impleading of the minor son of the applicant has also been pleaded to be ratal to these proceedings. The learned counsel for the opposite party has, however, contended that it was clear from the deposition of the parties themselves that the opposite party had been allowed to remain in cultivatory possession of the disputed land, even after Payment of the mortgage money, by the applicant himself. The opposite party had requested, and thereby proposed, that he should be allowed to remain in cultivatory possession and this request or proposal was agreed to by the applicant. This proposal and acceptance thereof went to complete an agreement between the parties. This agreement rendered the opposite party to be a tenant. As a tenant he could not be forcibly dispossessed by the applicant. He should have taken proceedings under law for the ejectment of the opposite party and not taken forcible and wrongful possession of the disputed land. The argument is that as the opposite party was a tenant, he could have been dealt with only in accordance with the provision of the Rajasthan tenancy Act and not otherwise. But as he had been dispossessed forcibly by the applicant it was a wrongful ejectment and he deserved to be reinstated into possession under sec. 186 (since omitted) of the Rajasthan Tenancy Act, hereinafter referred as the Act. As for the impleading of the minor son of the applicant it has been argued by the learned counsel for the opposite party that he had stated in his application that the disputed land belonged to the applicant and he had been cultivating it on rent (vide Para No. 1 thereof), to which the applicant had replied (vide Para No. 4 of his written statement that the land had been mortgaged and re-deemed since. This means that the applicant had admitted himself to be the superior tenant of the opposite party, the applicant. There did not remain, therefore, any necessity of impleading the minor son of the applicant. For decision under sec. 186 (since omitted) the only thing to be decided is whether the opposite party was the tenant of the disputed land that he had been dis-possessed herefrom otherwise than under the provisions of the Act. The point for determination is whether after the payment of mortgage money to him, the possession of the opposite party was as a mortgagee or as a tenant and whether if he had not relinquished the possession of the land he could have been forcibly dispossessed by the applicant. The opposite party has not preferred an application in his capacity as mortagee. He has rather come with the plea that he was a tenant independently of the mortgage. This status is claimed by him on the basis of his request to be allowed to remain in possession and acceptance thereof by the applicant. All this took place in Chet Svt. 2012 before the enforcement of the Act. This proposal and acceptance did go to form an agreement. The question is whether it went to create a tenancy as well, and a relation-ship of a tenant and sub-tenant between the parties came into existence Although the applicant denied that he allowed the opposite party to remain in possession as a tenant, he has deposed that when he offered the mortgage money to the opposite party, he told that as he had no other land with him he, would accept the mortgage money only if he was allowed to remain in possession of the land for one year and that he took the opposite party to his father and allowed him to remain in possession of the disputed land for one year more with his consent. He has also stated that he has allowed this on the condition of payment of the rent to the Government by the opposite party himself, and that he continued cultivating the land thereafter on this very condition. The opposite party has also deposed that he continued to remain in possession after the redemption of the land in Chet Svt. 2012. Now, what is to be seen in this case is whether the mortgage had been actually re-deemed in the legal sense of the term or not when the money had been paid in Chet Svt. 2012. The right of redemption is a very valuable right in favour of the mortgagor and a provision or stipulation which would have the effect of clogging or fettering the equity of redemption is void. There is also a well known maxim, once a mortgage always a mortgage. The mortgagee cannot reserve to himself any collateral advantage outside the mortgage contract. Sec. 60 of the Transfer of the Property Act very clearly lays down that if the principal money has become due the mortgagor has a right on payment or tender at a proper time and place of the mortgage money, to require the mortgagee to deliver back the mortgaged property to the mortgagor along with mortgage-deed or other relevant documents. The right so conferred by this section is called the right to re-deem, the mortgage i. e. the applicant in the present case had, therefore, right to tender the mortgage money and ask for the re-delivery of the mortgaged land to him. He exercised this right. The opposite party did show willingness to accept the money in advance on the condition that as he had no other land, he should be allowed to be continuing in possession for a year or more. Now, the applicant could force him to re-deliver the disputed land then and there or he could go to the court to have this right of his enforced. Instead, he preferred a way which was acceptable to the opposite party. He allowed, as requested by him, the opposite party to remain in possession for one year more as it was not possible to pay the mortgage money without accepting that position unless a recourse was taken to a suit in the law court. Can the acceptance of such a condition really go to make a contract of tenancy? We do not think it could create the tenancy. Rather, we would be inclined to hold that the redemption in itself was not complete till then and although the mortgagor i. e. the applicant had fulfilled the part of his obligation in so far as he had paid the mortgage money, the opposite party had postponed, with mutual consent of the parties to fulfil his part of the contract to re-deliver the mortgaged land to the applicant. The redemption was, therefore, still to be completed; and it could be completed only when the mortgaged property was re-delivered. The opposite party as a mortgagee was bound to discharge this obligation under sec. 60 of the Transfer of Property Act. The question then remains is only whether in case of failure on the part of the opposite party the applicant could forcibly enter upon the mortgaged land or he should have gone to a court of law to enforce his right to having the mortgaged land to be re-delivered to him. The parties have not put up any law on this point before us. Nor have we been able to find what was the relevant law on this subject at the relevant time. But we can certainly take a clue from the provision of sec. 43 of the Act which deals with mortgages and their redemption, although with those created after the enforcement of the Act. Sub-sec. 3 of this section lays down that if a mortgagee does not re-deliver the land mortgaged he should be deemed to be a trespasser and liable to ejectment in accordance with the provisions of s. 183 of the Act. On this analogy we can treat the opposite party to be a trespasser as soon as he failed to re-deliver the mortgaged land even after the expiry of the period for which he had been allowed to remain in possession of the land after the payment of mortgage money. The point then arising for determination is whether he should have been ejected as a trespasser by the applicant or the latter had a right to enforce his ejectment himself by entering forcibly upon the mortgaged land. On the analogy of the above referred sub-sec. (3) the ejectment of the opposite party should have been sought under sec. 183 of the Act. The applicant could not be deemed under any provisions of law to be authorised to take law into his own hands and enter upon the land by force. But this alone does not solve the main question for determination in the present case. It is when the opposite party could be deemed to be a trespasser after his failure to re-deliver the mortgaged land, could he be authorised to seek a re-instatement under sec. 186 (since omitted) of the Act even if he was dispossessed forcibly and otherwise than under the provisions of the Act by the applicant. This sec. 186 entitled only a tenant to seek reinstatement. It did not recognise the case of a trespasser to be so entitled to reinstatement. The opposite party could claim for himself the status of a tenant (vide sec. 5 (43) (h) of the Act) only so long as he remained the mortgagee of the disputed land. He could not remain a mortgagee after the receipt of the mortgage money by him. He was bound to re-deliver the possession of the mortgaged land to the applicant after the receipt of that sum. Even without the analogy of the provisions of sec. 43 (3) of the Act, he would-become a "tres-passer" under sec. 5 (44) of the Act as soon as he retained possession of the land thereafter, or in any way at least after his failure to re-deliver the possession after the expiry of the period for which he had been allowed to continue in possession by the applicant at the time of the payment of the mortgage money. As a trespasser, obviously, even though he was ejected forcibly or wrongfully he could not be allowed to be re-instated under sec. 186 (since omitted) of the Act. His application cannot, therefore, be called to have been allowed correctly by the learned Commissioner. The learned Sub-Divisional Officer was right in dismissing it although for reasons different and not quite correct under law. Thus we find that the learned Commissioner has exercised a jurisdiction not vested in him as discussed above. Because of his exceeding his jurisdiction his judgment deserves to be set aside. We, therefore accept this revision, set aside the order of the learned Commissioner and restore that of the Sub-divisional Officer (although for reasons quite different as detailed above) and direct that the application of the opposite party shall stand dismissed. .;