- (1.) JAGDISH Dass, petitioner has filed this review petition against the judgment and decree of the Board of Revenue dated 30. 3. 60. Briefly the facts of the case are that the petitioner claiming himself to be the mortgagor of Khasra Nos. 609, 615, 616, 617 and 618 situated in village Palia, Tehsil Nawai of district Tonk filed a suit for the redemption of the mortgage against Onkar and Kalyan, respondents in the court of the Assistant Collector, Tonk alleging that he had mortgaged the land in the possession of the respondents in Asad, Smt. 2002 with the respondents for a sum of Rs. 150/- and had got the mortgage deed executed. Kalyan, respondent admitted the mortgage by the petitioner but Onkar not only denied the mortgage but also stated that he was khatedar of the suit land and pleaded that the petitioner had no right to file suit for the redemption of the mortgage on the ground that he was an impostor.
(2.) THE trial court decreed the plaintiff's suit. THE Additional Commissioner, Jaipur as the first appellate court reversed the finding of the trial court and dismissed the petitioner suit. The second appeal filed by the petitioner before the Board of Revenue was rejected on the ground that the decision arrived at by the first appellate court was based on proper appreciation of evidence. It is against this judgment of the Revenue Board that this review petition has been preferred by the applicant. The only contention raised by the counsel for the petitioner was that the Revenue Board in disposing of the second appeal had committed an error apparent on the face of the record by misconstruing the evidence on record. The plaintiff petitioner had clearly proved his mortgage and in any case for khasra No. 616 the plaintiff petitioner was entered as the khatedar and the decree of redemption should have been given for that land in his favour. The counsel for the respondent refused these arguments. We have considered the arguments advanced by both the sides and have perused the record. The plaintiff petitioner had filed a suit for the redemption of the suit lands against the defendant respondent. Before the plaintiff petitioner could succeed in obtaining a decree of redemption he must prove that he was the khatedar and the mortgagor of the suit land. The petitioner, in our opinion,, has completely failed to prove that he was the khatedar of the suit lands. The entries in the record of rights for the aforesaid khasra numbers for Smt. Year 1998 are clearly in favour of one Ramvilas s/o Gordhandass Mahant as Khatedar. In the subsequent settlement in Smt. 2008 entry in favour of Ramvilas as khatedar is repeated for all the khasra numbers except No. 616, in respect of which Ramvilas and Jagdish Dass have been shown as joint khatedars and mortgagors of the suit land. Similar situation is found in the parcha chak bandis Exhibits P. 1 and P. 2 on the file. Under these circumstances, Ramvilas alone could have filed a suit for the redemption of the mortgage land as khatedar after proving that the land was mortgaged to the respondents. No relationship between the present plaintiff petitioner and the recorded khatedar Ramvilas has been shown to exist during the trial of this case. The counsel for the petitioner orally stated that Ramvilas and the present petitioner and one Ramanand were the three sons of Pratapdass. The mortgage property belonged to these persons and Ramvilas had not been heard of for the last twenty years and, therefore, he should be presumed to have died. Hence this suit was brought by Jagdish Dass the present petitioner. We have not been persuaded to appreciate this attempt of the counsel for the petitioner to establish the relation between the present plaintiff petitioner and the recorded khatedar Ramvilas. The property for which this suit has been filed clearly belongs to one Ramvilas and he or his heirs and successors alone could maintain this suit for the redemption of the mortgage if proved against the respondent. The present plaintiff petitioner, in our opinion, has miserably failed to prove that he was the khatedar of the land by way of heir or as successor to Ramvilas and that the land was at all mortgaged with the respondent. Both the appellate courts, therefore rightly decided the question of fact that the plaintiff petitioner was neither the khatedar nor the mortgagor of the suit lands and was thus precluded from maintaining the suit and obtaining a decree against the respondent. In fact, this was the first enquiry that the trial court should have made before proceeding with the case, viz, how the present plaintiff petitioner was connected with the recorded khatedar Ramvilas. It appears that Ramvilas has either abandoned these holdings or has died leaving no heirs behind and it should be presumed that he is dead and if no heirs have been left behind, the property should be escheated to the State. Nevertheless, the contention raised by the counsel for the petitioner that there was an error apparent on the face of the record in deciding this case by the Board of Revenue in second appeal is clearly unfounded. The entry in favour of the petitioner in khasra 616 is also not clear without adequate proof of a relationship with Ram Vilas khatedar the name of the petitioner should not have been recorded as joint khatedar of khasra 616. No relief could accordingly be given to the petitioner for this khasra number by way of redemption of the mortgage. Even presuming that the petitioner had made a mortgage of the suit land in Svt. 2002, by virtue of the operation of law contained in sec. 43 of the Rajasthan Tenancy Act, 1955 the usufructuary mortgage must be deemed to have been extinguished, after the expiry of 20 years from Smt. 2002, and in 2022, the mortgage land must revert to the original mortgagor. Thus no case has been made out by the counsel for the applicant which warrants our interference. In the order passed in second appeal by the Board of Revenue as no error apparent on the face of the record exists, consequently, this review petition must fail. Before we part with this case, we would like to direct in exercise of the powers conferred by sec. 9 of the Rajasthan Land Revenue Act, 1956 of general superintendence and control over the Revenue Courts that the Collector should now enquire into the question whether the khatedar Ram Vilas is alive or dead. If he has not been heard of for the last seven years he should be presumed to be dead. If Ram Vilas has left behind any heirs, their names should be entered in the record of rights. In the absence thereof, the holding should be escheated to the State and for that purpose proper proceedings under the Escheat Regulations may be instituted. If Ram Vilas had mortgaged the land during his life time then, no doubt, by the operation of the law the mortgage would be extinguished as stated above and the holdings would evert either to the mortgagor or his successors or to the State if escheat proceedings succeed, from all encumbrances, and the respondent should be ejected as a trespasser. However if no mortgage was ever made by Ram Vilas, the question of the redemption of mortgage would not arise and in that event, the property must be mutated in favour of the successor of Ram Vilas if found or it should revert to the State as bona vacantia under the escheat proceedings. We take a serious view of the matter in this case and place on record our sense of disapproval for the failure on the part of the District Land Records Officer to keep the record of rights upto date on the death of Ram Vilas. The mutation proceedings should have been started at the appropriate time thus eliminating the possibility of allowing the lower ranks of the Revenue Officers to temper with the record. It is not understood how in the absence of the khatedar tenant for such a long period the patwari of the area was able to frame demand for rent and recover the same from the absentee land holder. The defendant respondent as sub-tenant or trespasser was really not proper person from whom the demand for rent should have been made or recovered. The liability to pay rent fairly rests on the Khatedar and not on any other person. For the reasons stated above we reject this review petition and direct that a copy of this judgment be sent to the Collector, Tonk, for necessary action in the light of directions given in this judgment. . ;