- (1.) THIS is a reference by the Munsiff Rajsamand under sec. 243 (2) of the Rajasthan Tenancy Act, 1955.
(2.) THE present suit was instituted by Bhera on 26th November, 1962 in the court of Assistant Collector, Rajsamand for the redemption of his tenancy holding consisting of plots Nos. 34 to 40 and 42/8, situated in village Sangat Tehsil Kummalgarh. It was alleged in the plaint that the holding was mortgaged with possession in favour of Kesarsingh defendant No. 1 for Rs. 88/- about 8 years prior to the institution of the suit, that the mortgage-deed which was executed on a stamped paper by him was in the possession of defendant No. 1 and that the mortgaged money had been fully paid out of the profits from the land. In the alternative it was stated that he was willing to pay whatever might be found due on the mortgage. A prayer for redemption was made. The Assistant Collector was of the opinion that the suit was triable by the civil court and not by the revenue court. He accordingly returned the plaint for presentation before the civil court having jurisdiction. When the plaint was presented before the Munsiff Rajsamand he made the present reference under sec. 243 (2) as he was of the opinion that in view of the decision of a learned single Judge of this Court in Asala vs. Narain (l) the suit was triable by the revenue court. I have carefully examined the decision and I find that all that was laid down in it was that the intention of the legislature in using the phrase "of the nature" in sec. 207 of the Rajasthan Tenancy Act, 1955 was that suits which not only squarely fall within the four walls of the various items specified in the Third Schedule, but also those which may not so fall but which may partake the nature thereof, can be heard and determined by a revenue court only. Sec. 207 runs as follows: "207. Suit and applications cognizable by revenue court only.- (1) All suits and applications of the nature specified in the Third Schedule shall be heard and determined by a revenue court. (2) No court other than a revenue court shall take cognizance of any such suit or application or of any suit or application based on a cause of action in respect of which any relief could be obtained by means of any such suit or application. Explanation: - If the cause of action is one in respect of which relief might be granted by the revenue court, it is immaterial that the relief asked for from the civil court is greater than, or additional to, or is not identical with, that which the revenue court could have granted. " It will be seen that a suit can be held to be triable by the revenue court under the above section only if the revenue court is able to grant substantial relief to the plaintiff. The observations made in Asala vs. Narain (1) have to be read in the light of the explanation to sec. 207. In para 6 it was observed: - "the guiding test according to these decisions, put in a nutshell, is: what is the true nature of the suit, or what [is its object as disclosed by the allegations contained in the plaint? If the answer to these questions is that the plaintiff seeks the establishment of reliefs which essentially fall within the scope of the Tenancy Act, that is, the Act of 1955, with which we are concerned here, then the conclusion as to the proper jurisdiction of such a suit is and must be that it is one which is exclusively triably by a revenue court, and that the jurisdiction of the civil courts to try and dispose of such suits is wholly barred. That is the gist of sec. 207 of the said Act which lays down that all suits and applications "of the nature" specified in the Third Schedule thereof shall be heard and determined by a revenue court. " In the present suit the plaintiff who is a tenant of the holding wants to get possession over it from defendant No. 1, the usufructuary mortgagee and defendant No. 2 who is in actual physical possession of the holding on behalf of defendant No. 1 on payment of mortgage money remaining unpaid, if any. Chapter IV deals with devolution, transfer, exchange and division of tenancies. Sec. 41 lays down that the interest of a Khatedar tenant shall be transferable, otherwise than by way of sub-lease, subject to the conditions specified in secs. 42 and 43. Sec. 42 deals with the sale or gift and sec. 43 deals with mortgage. Sec. 43 runs as follows: "43. Mortgage - (1) A Khatedar tenant may transfer his rights in the whole or a part of his holding in the form of a usufructuary mortgage for a period not exceeding ten years; Provided that the Khatedar tenant being a member of a scheduled caste or a scheduled tribe shall so transfer his rights in the whole or a part of his holding to any person who is not a member of a scheduled caste or scheduled tribe. (2) A usufructuary mortgage of any land made before the commencement of this 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 date 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. (3) If the mortgagee does not so redeliver the land mortgaged, he shall be deemed to be a trespasser and liable to enjectment in accordance with sub-sec. (1) of sec. 183. (4) A person to whom rights have accrued under sec. 19 may also hypothecate by way of simple mortgage his rights in whole or a part of his holding for the purpose of obtaining loans from the State Government or a land mortgage bank or a Co-operative Society or any other institution notified by the State Government in that behalf. (5) Omitted. (6) A Khatedar tenant may also transfer his rights in whole or a part of his holding in the form of a simple mortgage for the purpose of obtaining loans from the Rajasthan Central Land mortgage Bank or a Co-operative Land Mortgage Bank or a Co-operative Credit Society, registered or deemed to be registered as such under the Rajasthan Co-operative Societies Act, 1953 'rajasthan Act IV of 1953 ). (7) All mortgages effected under sub-sec. (6) shall be regulated and governed by the provisions of the Rajasthan Co-operative Land Mortgage Bank Act, 1956. " It will be seen that after the commencement of the Act a Khatedar tenant can mortgage his holding usufructuary for a period not exceeding ten years. Sub-sec. (2) lays down that all mortgages whether made before or after the commencement of the Act shall be self-redeemed. In case of a mortgage made before the commencement of the Act it shall be deemed to have been redeemed on the expiry of the period for which the mortgage was made or on the expiry of twenty years, whichever is less. Sub-sec. (3) provides that if the usufructuary mortgagee does not deliver possession of the mortgaged land to the tenant when the mortgage has been redeemed under the provisions of sub-sec. (2), the mortgagee shall be deemed to be a trespasser and shall be liable to ejectment on the application of the tenant under sec. 183 (1 ). This section is not applicable to the present case because the plaintiff has not alleged that the mortgage was for any fixed term which has expired. According to his allegation the mortgage was made only eight years before the institution of the suit. Sub-sec. (2) is therefore was applicable to this mortgage and the mortgagee cannot be ejected on an application under sec. 183 (1 ). The next section to be considered in this connection is sec. 43 A which now runs as follows: - "43 A.- Provisions in relation to mortgages of agricultural holdings effected before the commencement of the Act.- (1) Notwithstanding anything contained in sec. 43. a mortgage other than a usufructuary mortgage of a tenant's holding effected before the commencement of this Act and the rights and liabilities of the parties to such a mortgage shall, notwithstanding anything contained in this Act, continue to be governed by the terms thereof and by the law in relation thereto prevailing before such commencement. (2) Any such right or liability may be enforced by means of a suit instituted by the person aggrieved in the court of the Assistant Collector having jurisdiction within the time, if any, fixed and on payment of the court fee prescribed, therefor by such law. " This section, as it now stands, deals with mortgages other than usufructuary mortgages and has no application to the present case. The only two other sections which remain to be considered are sec. 183 and 187. Sec. 183 (1) runs as follows: - "ejectment of certain trespassers.- (1) Notwithstanding anything to the contrary in any provision of this Act, a trespasser who has taken or retained possession of any land without lawful authority shall be liable to ejectment, subject to the provision contained in sub-sec. (2), on the suit of the person or persons entitled to admit him as tenant, and shall be further liable to pay. as penalty for each agricultural year, during the whole or any part where of he has been in such possession a sum which may extend to fifteen times the annual rent. " Is is not applicable to the present case as the mortgagee cannot be regarded as a trespasser which is defined in sec. 5 (44) as a person who takes or retains possession of land without authority or who prevents any person from occupying land duly let out to him. A usufructuary mortgagee being let into possession by the tenant himself cannot be regarded as a trespasser unless sec. 43 (2) is applicable. As has been shown above that is not applicable in the present case. Sec. 187 (1) runs as follows: - "remedies for wrongful ejectment - (1) Any tenant ejected from or prevented from obtaining possession of his holding or any part thereof otherwise than in accordance with the provisions of the law for the time being in force, may sue the person so ejecting him or keeping him out of possession for all or any of the following reliefs, namely.- (i) for possession of the holding ; (ii) for compensation for wrongful ejectment or dispossession ; (iii) for compensation for any improvement he may have made; Provided that no decree for possession shall be passed where the plaintiff at the time of the passing of the decree, is liable to ejectment in accordance with the provisions of this Act within the current agricultural year. " This too has no application to the present case. A usufructuary mortgagee who is let into possession by a tenant himself comes under the definition of tenant under Sec. 543 (h ). Sec. 187 (1) is not applicable to him. It will thus be seen that relief cannot be granted to the plaintiff under any provision of the Rajasthan Tenancy Act, 1955. The present suit is thus not triable by the revenue court. It is triable by the civil court. I may here refer to the decision of a learned single Judge in Nathu vs. Chuma (2 ). In that decision it was held that a suit for redemption of a usufructuary mortgage was triable by the revenue court. That decision was however, given on an interpretation of sec. 43 and 43 A of the Rajasthan Tenancy Act, 1955 as they stood at that time. Since then these sections have been amended and that decision is no longer applicable. Under the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951, a suit by a mortgagor for redemption of land and for redelivery of possession lay in the revenue court as it was provided for under item No. 5 of Group D of the First Schedule of that Act. When the Rajasthan Tenancy Act, 1955 was enacted sec. 43 of it contained a provision similar to that contained in sec. 43, as it stands now, with regard to usufructuary mortgages made after the commencement of the Act. But with regard to usufructuary mortgages made before the commencement of the Act sec. 43 A provided as follows: - "provisions in relation to mortgages of agricultural holdings effected before the commencement of the Act.- (1) Nothing in sec. 43 shall apply to any mortgage of a tenant's holding effected before the commencement of this Act and the rights and liabilities of the parties to such a mortgage shall, notwithstanding anything contained in sec. 4, continue to be governed by the terms thereof and by the law in relation thereto prevailing before such commencement. "
(3.) UNDER the above provision the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act, 1951 was applicable to suits for redemption of a usufructuary mortgage made before the commencement of the Rajasthan Tenancy Act, 1955. As has been pointed above a suit for redemption for such a mortgage lay in the revenue court. Now that sec. 43 A has been amended it contains no provision similar to that contained in it before amendment and a suit for redemption of a usufructuary mortgage made before the commencement of the Rajasthan Tenancy Act, 1955 therefore lies in the civil court, unless sec. 43 (2) is applicable to it, that is, unless a period of twenty years has elapsed since the mortgage was made or the period for which the mortgage was made has expired. I accordingly hold that the present suit is triable by the civil court. I therefore return the reference and direct Munsiff, Rajasamand to try the suit. As the suit has remained pending for over three years the learned Munsiff should give top priority to it and dispose of it expeditiously. That does not however mean that full opportunity should not be given to the parties to produce their evidence. . ;