- (1.) THIS second appeal has been filed against the judgment and decree of R. A. A. Kota dated dated 6-1-67 whereby the appeal filed by the respondent against the order of S. D. O. , Aklera was accepted and the suit of the plaintiff respondent was decreed. If was further observed that the plaintiff is entitled to fifteen times annual rent from the appellants.
(2.) A suit u/s 183 of the Rajasthan Tenancy Act was filed by the plaintiff-respondent before the Assistant Collector, Aklera with the averment that the land covered by khasra number 512/309 of the khata of Bhuwana was mortgaged for Rs. 92/-with the father of the defendants-appellants. After the death of Bhuwana the land in dispute was entered in the name of father of the plaintiff and on his death 15-16 years back, the said land was entered in the khata of the plaintiff. The usufructuary mortgage was effected through mutation dated 10-10-1927. It was alleged that when the plaintiff asked the defendants on 19-2-64 to surrender the land, they refused and hence the plaintiff prayed for ejectment of the defendants. In their written statement, the defendants while admitting the factum of mortgage stunted that the plaintiff is not a minor and the suit is time barred. They further stated that they are continuously in possession of the land in dispute and are tenants of the same. It may be stated here that the suit originally was filed by the mother of the plaintiff on the allegation that the plaintiff was a minor. The trial court framed seven issues on the basis of pleadings of the parties. It first took up issues Nos. 1, 4 & 5 for decision. These issues are as under : - 1. Is the plaintiff khatedar tenant of the land in dispute ? Onus on plaintiff. 4. Is the suit time-barred ? Onus on defendants. 5. Has the tenancy of the plaintiff terminated due to possession of the defendants ? Onus on defendants. The trial court decided all the three issues by holding that the suit was time barred. The lower court placed reliance on amended Sec. 43 (2) of the Rajasthan Tenancy Act under which a usufructuary mortgage of any land made before the commencement of the Act or in pursuance of the provision contained in sub-sec. (1) shall upon the expiry of the period mentioned in the mortgage-deed, or twenty years from the dated of the execution thereof whichever period is less, be deemed to have been satisfied in full without any payment whatsoever 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 free from all encumbrances. (underlined by court ). The lower court also relied on sub-sec. 3 of the said section under which if the mortgagee does not so redeliver the land mortgaged, he shall be deemed to be a trespasser and liable to ejectment u/s 183. In the Third Schedule annexed with the Act, for suit u/s 183 the period of limitation prescribed is twelve rears from the date of cause of action. The trial court, therefore, in the light of above provisions of law came to the conclusion that the usufructuary mortgage took place through the mutation dated 10-10-27 and 20 years expired on 9-10-47 in terms of provisions of sec. 43 (2 ). And taking the period of limitation as 12 years for filing suit u/s 183 of the Act, the suit should have been filed on or before 8-10-59 (the trial court has erroneously mentioned the dates as 9 9-47 and 9-8 59 ). It, therefore, concluded that the suit was filed beyond the period of limitation viz. on 19-3-65. The learned R. A. A. in appeal against the order of Assistant Collector, Aklera held that the suit was filed within the period of limitation. The consideration which weighed for coming to this conclusion is the provisions of Limitation Act He observed that the plaintiff could file the suit three years after attaining the majority. He discussed the evidence led by the defendants to prove that the plaintiff was a major and not a minor and held the said evidence holding the plaintiff a minor as unreliable. The suit was, therefore, held to be within the period of limitation and defendants declared as trespassers and further liable to pay fifteen times annual rent from the date of institution of the suit and its restoration to the plaintiff. The defendants have now come up in second appeal before us. We have heard the arguments advanced by the counsel for the parties and examined the record. The learned counsel for the appellants while referring the provisions of sec. 43 (2) read with sec. 206 of the Act argued that the limitation for redemption of usufructuary mortgage if no period has been mentioned in the deed is 20 years from the date of execution. This period of limitation expired in 1947. As the suit was filed in 1965, the trial court was justified in holding it time barred. He cited 1965 R. R. D 258 under which it has been held that after the lapse of 20 years the mortgage debt must be deemed to have been extinguished and thereafter the continuation of the mortgagee in possession must be deemed to be in the capacity of a trespasser. He contended that the learned R. A. A. was not justified in observing that the appellants should have filed cross appeals regarding their objection that the plaintiff was not the son of deceased Bhenru. It was contended that the observation of the appellate court that the defendants plea of tenancy had not been proved, is misconceived and without any foundation. In support of the above argument, the learned counsel drew our attention to the pleadings in the plaint where the plaintiff had admitted adverse possession of the defendants for the last 40 years. It was averred that right to redeem subsists when the suit is filed but it should be within limitation. He cited Dalu vs. Juharmal (I. L. R. Raj. 166 ). It was further argued that it was wrong to hold that the suit was within limitation u/s 183 when the limitation had already expired in 1947. He contended that while giving a reversing judgment, the lower appellate court failed to adjudicate upon each issue separately and without analysing and marshalling the evidence decided to decree the suit to the detriment of the defendants He referred to the decision reported in 1963 RLW 316. The learned counsel laid much stress on the mutation Ex. P. 1 in which the land is shown in the Khata of Bhuwana and the plaintiff, he stated, has therefore, no locus standi to file the present suit. In the Intqual, Bhuwana had been shown as 'jaili' and, therefore, a subtenant has no right to file suit u/s 183. He further stated that in the mutation the name of Bhenru does not find any place and the onus heavily lay on the plaintiff to prove the factum of mortgage. He assailed the impugned order also on the ground that there were contradictions in the statements of witnesses of plaintiff regarding his age hut these were not considered by the courts below. He, therefore, concluded that the impugned order is perfunctory and perverse. In reply, the learned counsel for the respondent referred to the entries of Jamabandi of St. 2019 to 2022 in which the plaintiff was recorded as khatedar and from this premise he stated that the presumption is that plaintiff is the recorded khatedar. He referred to Ex. P. 1. and controverted the argument of the appellant that the plaintiff was shown as 'jaili' in it. He stated that the plaintiff had been entered as khatedar and not jaili. As for the relationship of the plaintiff with Bhuwana, the learned counsel contended that it was not necessary to prove the same as no issue had been framed on this point and no evidence was, therefore, led. Khate-dari of the plaintiff was proved from the entries of record of rights and presumption of truth, therefore, attaches on the said entries. He cited 1964 R. R. D. 101. Regarding the argument of the appellant that the plaintiff should prove the factum of mortgage, the learned counsel stated that in the written statement the factum of mortgage had been admitted by the defendants and, therefore, need not be proved. 1965 R. R. D. 270 was cited in support of this argument. It was argued that it was wrong to hold the defendants as tenants. The position is of mortgagor and mortgagee for a consideration of Rs. 92/ -. As for the limitation for redemption, it was argued on behalf of the respondents that it was 60 years and not 20 years as Rajasthan Tenancy Act came into force subsequent to the mortgage. He stated that sec. 43 (2) does not apply in the instant case. He averred that the suit is to be governed by the law prevailing at the time of mortgage in 1927. The period of limitation was 40 years in 1927 for redemption of mortgage. He cited 1957 Supreme Court 540. Relying on 1962 S. G. 918, he stated that vested rights cannot be snatched away by subsequent legislation and that Article 254 will prevail over Act of Legislature when at variance or inconsistent. In rejoinder, the learned counsel for the appellant contended that issues No. 1 & 3 arc to be decided together. For obtaining decree in the suit, the plaintiff is required to prove something more than his khatedari. In the plaint he claims title through Bhuwana and, therefore, it is necessary requirement of law that the plaintiff proves that he is successor of Bhuwana as the mutation is silent on this point. We may now discuss the reverse findings of the two courts below on the legal issue viz. limitation. The trial court dismissed the suit holding it beyond limitation and the appellate court decreed the suit observing it to be within limitation. The present suit filed in the year 1965 will be governed by the provisions of sec. 43 as it stands amended on that date and sec. 43 (2) under which there is provision for such usufructuary mortgages will apply. This section was amended on 5-4-61 and the provisions of this section were made applicable to those mortgages which were entered into before the commencement of the Rajasthan Tenancy Act. According to this amended provisions all usufructuary mortgages upon the expiry of the period mentioned in the mortgage deed or twenty years from the date of the execution thereof, whichever period is less, were deemed to have been satisfied in full without any payment and possession thereof was required to be delivered to the mortgagor free from all encumbrances. In the present case the mortgage was effected through the mutation dated 10-10-1927 and by legal implication, therefore, immediately after the aforesaid amendment the land in dispute stood redeemed without any payment as there was no period mentioned in the mortgage deed. The position which thus emerges is that on 5-4-61 after coming into force of the amendment, the relationship of mortgagor and mortgagee ended and the land stood redeemed and if the land is not surrendered, the mortgagee will be deemed to be a trespasser in terms of sec. 43 (3) of the Act. U/s. 183 of the Act for filing a suit of ejectment the period of limitation provided in the Third Schedule at item No. 23 is twelve years. This period will be reckoned from 5-4-61. As the suit was filed in the year 1965, it is within limitation and the finding of the lower appellate court on this issue is perfectly justified. We do not agree with the learned R. A. A. wish the part of the impugned order by which the suit has been decreed. As observed above, the trial court only decided issues No. 1, 4 & 5 It fully discussed the issue No. 4 but failed to properly analyse and marshall the evidence with regard to other issues, namely, No. 1 & 5. The R. A. A. also did not discuss in detail the impugned order of the trial court. Apart from this the issue of minority of the plaintiff has not been discussed on the evidence on record. This issue is equally important as was issue No. 4. The suit could be decreed after the leaned R. A. A. had sufficient material before it on record to give finding on each issue and in that case too there should have been detailed discussion on each issue on the basis of oral and documentary evidence. Issues No. 2, 3 & 6 have not at all been discussed and no evidence was recorded by the trial court. We. therefore, feel inclined to accept this appeal and set aside the impugned order to the extent that so far as the judgment and decree relating to ejectment and payment of penalty is concerned, it will stand quashed. The decision of the learned R. A. A. on issue No. 4 that the suit is within limitation is upheld. We remand the case to the trial court with the direction that it may now proceed further deciding other issues except issue No. 4 and after recording evidence of the parties and hearing their arguments pass a fresh judgment and decree in accordance with the law. .;