- (1.) THIS second appeal has been filed by the defendants against an appellate decree of the Additional Commissioner, Jodhpur, dated 16. 1. 54, declaring the respondent Champalal as a khatedar tenant of the land in dispute.
(2.) WE have heard the parties and have gone through the record as well. Put briefly, the facts of the case are that Mst. Maggi was a dolidar to the extent of l/3rd of the land in dispute, Lalchand and Daulal, appellants, being the dolidars in the residuary 2/3rd area of the land. On 29. 6. 1923 Mst. Maggi executed a mortgage in favour of Lalchand and Daulal of her share in the doli for a period of 24 years. During the pendency of this mortgage i. e. on 7. 5. 46, Champalal was admitted to the tenancy of the land in dispute for a fixed period of four years by the mortgagees. On 11-6 50 Champalal instituted a suit for the declaration of his khatedari rights. It may be mentioned here that on 22. 2. 47 i. e. prior to the expiry of the period mentioned in the deed of mortgage created in 1923 Mst. Maggi executed a fresh deed in favour of the mortgagees and got it registered on 4. 3. 47. The Assistant Collector Sojat passed a decree declaring Champalal to be a gair khatedar of the land in dispute. The defendants went up in appeal before the Additional Commissioner, Jodhpur. Champalal filed a cross-objection. The lower trial court held that Champalal was entitled to be declared a khatedartenant,hence the defendants' appeal was rejected and the cross objection was allowed. The defendants have now come up before us in second appeal. The main contention raised by the appellants before us is that the deed executed by Mst. Maggi on 4. 3. 47 created a tenancy in their favour and hence Champalal can have no other status but that of a sub-tenant who is not eligible for being declared as khatedar. Further, his contention is that the deed dated 4. 3. 47 amounts to a baraskati or zarepeshgi lease and not to a mortgage. According to the respondents this deed amounts to a mortgage in continuation of the old one which was not redeemed. In our opinion it is not necessary for purposes of the present case to determine as to whether the deed dated 4. 3. 47 amounts to zarepeshgi lease or mortgage. This deed which was executed on 22. 2. 47 and registered on 4. 3. 47 came into existence after a contract of tenancy had been entered into between the parties on 7. 5. 46. The rights and liabilities of the parties will have therefore to be determined with reference to the contract of tenancy entered into on 7. 5. 46. The appellants had at the time of entering into this contract no other status but that of mortgagees and as has been amply proved by documentary evidence Champalal respondent was definitely admitted as a tenant and has been in continuous possession since then. It is not open to the appellants now to deny the status of a tenant to Champalal. It was also argued before us that Champalal should have been held to be gair khatedar tenant as he was admitted to tenancy for a fixed period only. We find no substance in this contention. Sec. 10 of the Marwar Tenancy Act, 1949, which came into force on 6. 4. 49 clearly lays down that "every person who at the commencement of the Act is a tenant otherwise as a sub-tenant shall be a khatedar". Champalal being a tenant on this crucial date is entitled to the benefit of this legislation. Sec. 11 of the same Act lays down the categories of lands in which khatedari rights shall not accure. The land in dispute admittedly does not come within that category. There is nothing in the Act to suggest that a tenant holding for a fixed term is to be debarred from being held as a khatedar tenant if he otherwise fulfills the requirement of law. The lower appellate court was therefore, justified in declaring Champalal to be a khatedar tenant of the land in dispute. The appeal is thus without any force and is hereby rejected. .;