K. S. Ranawat - (1.) THIS is an application under sec. 10 (2) of the Rajasthan Protection of Tenants Ordinance No. IX of 1949 for the revision of the order dated 15. 9. 51 passed by the Assistant Collector, Kotah by which he rejected the application for restoration of possession.
(2.) THE facts of the case in brief are that the non-applicant No. 1 Nirbhey Ram holds in muafi 55 bighas and to biswas of land in village Kesharpur in Tehsil Bigod. He gave the cultivatory right of the field in question to the applicant on receipt of a sum of Rs. 600/ -. THE applicant alleges that this amount was paid by him for obtaining the lease of the field in question, whereas the non-applicant No. 1 says that the amount of Rs. 600/- was received by him as loan and the holding in question was mortgaged to him in lieu of this amount. THE case prior to this was heard in revision by the Board and the members had remanded it with the direction to ascertain certain points from the revenue records and to give decision again. THE Assistant Collector after making enquiries on those points has again upheld his former opinion and dismissed the application. It is against this order that the applicant has come in revision. The counsel for the parlies was heard. The chief plea of the counsel for the applicant is that he has been entered in the revenue record as jaili therefore this contract is a lease and not a mortgage. According to sec. 42 of the Circular No. 3 of the covenanting Kotah State no transaction by way of mortgage is legal unless it is entered in the mutation register. Therefore, had the transaction been a usufructuary mortgage his client would have never risked this amount of Rs. 600/- by not getting it mutated in his name as mortgagee with possession. The entry in the mutation register of his name as jaili is not a new one but it is very old, of the Sambat year 1981. The counsel for the non-applicant replied that the language of the deed clearly shows that the transaction is one of usufructuary mortgage and not that of a lease. To support his case he has referred to A. I. R. 1930 Madras 160 in which it has been held that when money was borrowed and the money lender was put in possession of the land, such transaction was held to be a mortgage. I have carefully examined the arguments of the parties. The learned Assistant Collector has no doubt made enquiries as directed by the Revenue Board, but while giving the judgment he made no use of them. He confined himself only to the language of the deed, and gave his judgment in this light only, which was not in accordance with the directions of the Board. Had their intention been of deciding the issue whether the deed was a mortgage or a lease on the merits of the document only, there was no necessity of remanding this case as the document in question was before them. But they wanted to know what light the revenue records throw on the merits of the case. I would therefore attach greatest importance to the revenue records, because it is these records which show what was the intention of the parties when they executed the deed. The deed in question was executed in Sambat year 1978 and no mutation of the khata was made till 1981, whereas the applicant was entered as jaili and the same entry continued to be repeated till the applicant was ejected from the fields. The definition of jaili has been given in sec. 69 of Circular No. 3 of the covenanting Kotah State. It clearly states that the term jaili shall not include a mortgagee. Further, sec. 70 of the same circular deals with the rights of a jaili. He enjoys only those rights which have been stated in the deed of lease and as soon as the terms of the lease expire, he will be ejected from the field. He has no right of transfer etc Whereas a mortgagee enjoys the right of re-mortgaging the land mortgaged to him. Thus it is clear that a mortgagee enjoys more rights than a jaili. Had the deed been one of mortgage how could the applicant have remained contented by getting himself entered as jaili. Further vide sec. 42 of the Circular No. 3, mutation of a khata in the name of mortgagee is necessary. Non-compliance of this section may result in risk of the mortgage money. The applicant would have never taken this risk, when his name was entered as jaili. Thus from the entries made in the revenue records, the intention of the parties shall be presumed to be of lessor and lessee. Prior to the entry of 1981 this khata was in the name of one Jagannath as jaili and the non-applicant No. 1 was not cultivating it himself. Thus it is established that the transaction was a lease. Now we come to the contents of the document in question. A careful scrutiny of the deed in question will show that there is no mention of the word "borrowing" and "mortgaging" in this deed. On the other hand the document begins with the mention of the muafi land to be given in possession to the applicant in village Kesharpura as is the practice in writing leases. There is also a reference of 'akhateej' in the deed which is the time for ejecting jaili or sub-tenant. The entry that after the chan-khar crop the applicant will not be liable to ejectment till he had raised one crop in the following season, as gram crop provides Mannar and the applicant should reap full advantage of manure in the following harvest. Apart from this a reference to 'munafa, katta' and interest also give a clue that the primary intention of giving the land was on lease. When money was advanced interest on it became necessary but it has been equalised by a reference to the profit of Katta which he did forego. Therefore there can be no presumption that the deed is of mortgage. The ruling of Madras High Court quoted by the counsel for the applicant is not on all fours in this, the circumstances and the facts of that case are quite unlike this case. Under the circumstances it shall be held that the applicant is a lessee and consequently a jaili and covered by the definition of a tenant and since this application is within three months from the date of ejectment, therefore he is liable for restoration. I would, therefore, with the concurrence of my learned colleague set aside the order of the lower court and accept the application for reinstatement. H. D. Ujjwal - 1 concur. .;