- (1.) THIS second appeal arises out of an appellate judgment and decree of the Additional Commissioner, Jaipur, dated 20-12-54, affirming the judgment and decree of the Assistant Collector, Lachmangarh dated 28-7-52 in a suit for recovery of possession of agricultural land.
(2.) THE brief facts of the case are that the plaintiff-respondent, Ghantoli filed a suit for recovery of possession against the defendant appellant, Behari Singh and others in respect of field Nos. 205, 206,207 and 212 of village Kankroli Tehsil Lachmangarh on the ground that he had cultivated these fields in Svt. 2007 but was forcibly dispossessed by the defendant appellant in July 1951 i.e. Svt. 2008. THE appellant admitted the respondent's cultivation in Svt. 2007 but pleaded that the land was mortgaged by him to one Nannumal Mahajan and Ghantoli was cultivating it on one year's Patta given by Nannumal, that on Jeth Sudi 8, Svt. 2008, he had redeemed the land on payment of the mortgage money to Nannumal and simultaneously the respondent had voluntarily relinquished the land which was then allotted by him to other cultivators. THE Assistant Collector, Lachmangarh, however, decreed the suit of the respondeat by his order dated 28-7-54.0n first appeal the Additional Commissioner affirmed the order of the trial court and dismissed the appeal. Hence this second appeal before us. We have heard the counsel for the parties and have also examined the record of the case. The counsel for the appellant argued before us the lower courts had failed to appreciate the evidence properly and that Ghantoly respondent had no locus standi to file a suit for recovery of possession as after the redemption of the mortgage by the appellant from Nannumal and the expiry of lease granted to Ghantoly by the mortgage he had ceased to be a tenant and was no better than a trespasser. A perusal of the record shows that the Assistant Collector had framed the following two issues: - (1) Had the defendant redeemed the land in dispute and had been put in possession thereof? (2) Did the plaintiff voluntarily relinquish the land and gave over possession to the defendants immediately after redemption of mortgage? The burden of proving both these issues was placed upon the defendant-appellant. The trial court after according the evidence of the parties found that the redemption had taken place not in Svt. 2008 but on 27-5-53 i.e. Svt.2010.As for the second issue, the trial court observed that since the redemption of mortgage had not been proved the question of voluntary surrender by the respondent in favour of the appellant could not arise and even if it be taken for granted that redemption had taken place in Svt. 2008, the appellant could not have taken the law in his own hand and ejected the plaintiff respondents in view of the protection granted to tenants against ejectment. The learned Additional Commissioner without giving any finding on the point whether redemption had taken place in Svt. 2008 or Svt. 2010 held that Ghantoli respondent was the tenant of the mortgage and "so long as the Rajasthan (Protection of Tenants)Ordinance is in force no tenant can be ejected from his holding even though the said holding was let out not by the mortgagor of the land but by the mortgagee " Sec 184 of the Alwar State Revenue Code under which this suit was filed lays down that - "if a tenant has been dispossessed without his consent of his tenancy or any part thereof otherwise than in execution of a decree or in pursuance of an order under sec. 180 (l)(a)(b),the tenant may within one year from the date of his dispossession or ejectment institute a suit for recovery of possession or occupancy or for compensation or for both." The period of limitation under this section has however now been extended to 3 years under item 12 of Group B of Schedule 1 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act. It is therefore, essential for any one seeking relief under this section to prove that he was a 'tenant' of the land in dispute and has been dispossessed therefrom without his consent or otherwise than in execution of a decree or order of a court. It was alleged by the appellant that Ghantoli was holding the land in dispute under a Patta from the mortgagee which came to an end simultaneously with the redemption of mortgage. The first point to be determined therefore,was whether after the redemption of mortgage had taken place, Ghantoli continued to enjoy the Status of a tenant and was thus eligible for relief under sec.184 of the Alwar State Revenue Code. In this connection the counsel for the appellant referred us to a decision of the Supreme Court reported in A.I.R 1952 S.C. 205(Mahabir Gope vs. Harbans Narain Singh). In the judgment it was held by their lordships that the general rule is that a person cannot by transfer or other wise confer a better title on another than he himself has. A mortgagee cannot therefore, create an interest in the mortgage property which will enure beyond the termination of his interest as mortgagee. Further the mortgagee, who takes possession of the mortgaged property, must manage it as person of ordinary prudence would manage it if it were his own, and he must not commit any act which is destructive or permanently injurious to the property.........It follows that he may grant lease not extending beyond the period of mortgage, any leases granted by him must come to an end at redemption........They have further observed that - "No doubt on the redemption of mortgage the mortgagor is not bound by the transfers made by the mortgagee or by contracts entered into by him unless his action can be supported on the ground that it was authorised by law or that he was tempowered to act under some power or authority, express or implied, conferred on him by the mortgagor. The mortgagor in such a case may be entitled to claim back possession of the property free from any liability created by the mortgage after the redemption of the mortgage, but this does not mean that, if in the exercise or his powers of due management as a person of ordinary prudence he has entered into an agreement of tenancy, on the mere redemption of the mortgage without the mortgagor exercising his option of putting an end to the tenancy the tenancy automatically and ipso facto lapses on the date of the redemption." The main point to be decided in this case would therefore be whether the tenant Ghantoli held the land under the mortgage for a fixed period of one year as alleged and whether that period had come to an end before the redemption of the mortage and whether after the redemption of mortgage Ghantoli had any substantive title as a tenant and was therefore eligible to relief under sec. 184 of the Alwar State Revenue Code. It appears that no issue was framed by the trial court on this point and as such attention of the lower courts was not directed towards it. As it is essential that a finding on this point be given before deciding this appeal and there is no material on record to enable us to adjudicate upon it, we consider it necessary that the following issue be framed and forwarded to the trial court for taking evidence of the parties thereon and resubmitting the case to the Board within three months with the record and its finding thereon in order to enable this court to decide the appeal pending before it - "Was the land in dispute leased out by the mortgage Nannumal to Ghantoli for a fixed period of one year i.e. Smt.2007 and whether the period of lease had come to an end simultaneously with the redemption of mortgage";