- (1.) THIS is a revision application under sec. 26 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951, against an appellate order of the Divisional, Commissioner, Kotah, dated 15-10-54 revering the appellate decision of the Collector Kotah, and restoring that of Tehsildar in a case relating to redemption of mortgage over an agricultural land.
(2.) WE have heard the learned counsel appearing for the parties and have examined the record as well,govinda applied for redemption of the land in dispute with the allegations that the mortgage was created in lieu of Rs. 226/- in favour of Bhanwarlal and that mutation No. 682 was sanctioned in respect of the same on 18-3-49. Bhanwarlal in his written statement admitted that the land stood in the name of Govinda but alleged that it was originally entered in name of Nanga, on whose death Govinda had got it entered in his own name in the absence of Bhanwarlal. Bhanwarlal admitted that Rs. 226/- were paid by him to the Jagirdar as this was sum alleged to be outstanding against Govinda, and that the Jagirdar realised this amount from him as Govinda was a cousin brother to him. The fact of mortgage was denied by him. He claimed that he had although been in possession of the land in his own right. The mutation was denounced on the ground that he was not a party to it. The Assistant Collector who tried the application held the mortgage as not proved and hence rejected the application. The Collector in first appeal came to a different finding and held that the mortgage stood established amply by the evidence on record. The learned Commissioner in second appeal disagreed with this finding and hence this revision. The learned Commissioner has observed that "the Collector gave no reasons as to how and why he held the mortgage as proved. " The judgment of the Collector clearly reveals the reasons that weighed with him in arriving at his finding. It was observed by the Collector that the land in dispute stood in the Khatedari of the applicant Govinda. The evidentiary value of the mutation was also examined. The evidence of the opposite party too, was perused and as a result thereof the Collector gave his finding. It is therefore, incorrect to say that no reasons were awarded by the Collector for his finding. The learned Commissioner appears to have overlooked the evidence on record while observing that there is no evidence to show that the land in question was actually mortgaged for a consideration of Rs. 226/ -. " The fact of Mortgage is borne out not only by the evidence of the applicant but also by pertinent admissions of the opposite party. As pointed out above, the opposite party admitted that the land stood in the Khatedari of the applicant. He, however, alleged that this entry was made wrongly or illegally but failed to adduce any evidence whatsoever on the point. It has also been admitted by the opposite party that he was required to pay Rs. 226/- which ware outstanding against the applicant in Thikana. According to the applicant's case the mortgage was created for this very amount and as a result of the mortgage the opposite party came in possession of the land in dispute. The opposite party has no reasonable explanation to offer as to how he came in possession of the land. His contention that he had been in continuous possession is palpably absurd. On 4-2-55 an opportunity was allowed to him show that the land in dispute after Nanga's death was entered in the name of his father Madu and that Madu came in possession of it. It was suggested that he might be able to produce certified copies of the mutation and the Khatas in support of his contention. In spite of repeated adjournments no evidence could be produced by the opposite party on the point and ultimately it was stated on his behalf that no such documentary evidence existed. On the other hand, the applicant was similarly allowed a chance to prove by certified copies of the Khatas that he was in possession of the land during Svt. years 2000 to 2005. He has produced certified copies of the Khatas for all these years which clearly support his case. Thus it becomes abundantly clear that after Nanga's death not only the land was entered in the name of the applicant but also that the applicant come in actual possession of the same as well and that his possession continued up to the time when it was transferred in favour of the opposite party by means of the mortgage. The statement of Hari Vallabh,patwari of Thikana, unequivocally establishes the case set up by the applicant and there is absolutely nothing in that statement to justify its rejection. In fact the oral evidence led by the applicant is so very convincing and connected that it leaves no room for suspicion of distrust. The opposite party has not at all been able to rebut this evidence. In fact the admissions that he has made go a great way in corroborating the case of the applicant as pointed out above. It is true that the opposite party was not present on the date when mutation No, 682 was sanctioned. But as the applicant's case does not rest entirely upon this mutation and has been established by other independent evidence as well much need not be said on the point. Suffice it to observe that the opposite party may not be present but there were other elders and Patels of the village who testified to the alleged mortgage though their personal knowledge and the officer concerned on that basis was convinced that a change in possession had in fact taken place. It has also been argued that the mortgage being above Rs. 100/- should have been created by a registered mortgage deed and as the same is not forthcoming, no mortgage could have been given effect to in mutation proceedings. This is obviously a false notion as a mutation order has to be recorded as fact which is proved to have occurred and it cannot be rejected if it has been acted upon In his case it is proved beyond doubt that the possession passed to the opposite party in lieu of his payment of Rs. 226/- to the Thikana on behalf of the applicant, and thus transaction of mortgage was completed and acted upon, The learned Commissioner, therefore acted with material irregularity in the exercise of his jurisdiction in ignoring the evidence existing on record and not looking into the reasons advanced by the first appellate court on arriving at its finding. We would, there are, allow this revision, set aside the order of the Commissioner dated 15-10-54 and restore that of the Collector dated 4-9-53 and direct that the land in dispute shall be redeemed on payment of Rs. 226/- as directed by the Collector. .;