RAJASTHAN HIGH COURT

                                               Laxman

                                                  Vs.

                                         Board of Revenue

                                  S.A. (Writ) No. 1132 of 1998
                         (Shiv Kumar Sharma and Guman Singh, JJ.)

                                             26.02.2008

                                               ORDER
Shiv Kumar Sharma and Guman Singh, JJ.

1. Suit filed by plaintiffs under Section 43 of the Rajasthan Tenancy Act, 1955 (for
short 'the Act') was dismissed being barred by limitation by the Sub-Divisional
Officer, Bundi. On appeal, the Revenue Appellate Authority set aside the findings of
S. D. O. and decreed the suit directing defendants to hand over the suit property. On a
further appeal, the Board of Revenue held that the suit was barred by limitation.
Learned single Judge, however, set aside the finding of Board of Revenue and allowed
the writ petition. Hence this appeal.

2. We have heard rival submissions advanced before us.

3. The facts giving rise to this appeal are that Mohan Lal and his father Chhitar Lal
(for short plaintiffs), filed a suit under Section 43 of the Act on July 9, 1965 for
redemption of the mortgaged lands bearing Khasra Nos. 495/1, 495/2 and 495/3
measuring thirteen bighas and seven biswas. The property was mortgaged by their
forefather Manna Lal for a sum of Rs. 280/- in Samvat 1961 (in the year 1904) with
Madho, Khana and Deva (all sons of Basu Mali), who are represented by respondents
No. 5 to 10 being the heirs of Madho, Khana and Deva and were placed in possession
as mortgagors. It was pleaded that their forefathers Manna Lal again took loans of Rs.
30/- in Samwat 1974, a sum of Rs. 28/- in Samwat 1984 and thus the disputed land
came to be mortgaged for a sum of Rs. 338/- Kattar Shahi equivalent to Rs. 270 and 4
annas. The plaintiff had requested for redemption of the mortgage by accepting a sum
of Rs. 270 and 4 annas and served a notice to that effect on the defendants. The
defendants refused to accept the amount and to deliver possession of the disputed land
to the plaintiffs and, therefore, the suit for redemption was filed.

4. Defendants Durga Lal and Daya Lal submitted written statement, claiming their
possession over the suit properties in their own title and not as mortgagees. It was also
claimed that on the basis of their long standing possession they became khatedar
tenants by operation of law and in any case by adverse possession they have acquired
title. The Sub-Divisional Officer, Bundi had arrived at a conclusion that the plaintiff
had failed to prove the relationship of mortgagor and mortgagee or the fact that the
mortgage subsists on the date of institution of the suit. Further the suit as it was filed,
was barred by limitation. The Sub-Divisional Officer dismissed the suit. In appeal
filed by the plaintiffs, the Revenue Appellate Authority arrived at a conclusion that the
property in dispute was mortgaged and there was relationship of mortgagor and
mortgagee between the plaintiff and defendants and set aside the judgment of the Sub-
Divisional Officer and decreed the suit directing the defendants to hand over
possession of the suit property. On a further appeal, preferred by defendants, the
Board of Revenue although maintained the findings of the property being mortgaged
and the relationship of mortgagor and mortgagee between the plaintiff and defendants,
has held that the suit was barred by limitation on the date it was presented on the
ground that the mortgage being of the year 1904, the suit should have been filed
within sixty years i.e. by 1964.

5. Being aggrieved by the findings of the Board of Revenue, the plaintiffs had filed
the writ petition. Learned Single Judge allowed the writ petition.

6. Before preceding further, a look at Section 43(2) of the Act, applicable at the
relevant time appear necessary. Section 43(2) reads as under:-

       "A usufructuary mortgage of any land made before the commencement of this
       Act or in pursuance of the provision contained in sub-section (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."
7. According to Section 43(2) of the Act, on completion of twenty years period the
usufructuary mortgage shall be deemed to have been redeemed and the mortgage
amount to be paid, shall be deemed to have been extinguished on April 5, 1961. The
plaintiffs would have been entitled to possession of property from that date and the
limitation would be twelve years from April 5, 1961. Usufructuary mortgage as
defined under Section 58(d) is the mortgage where the mortgagor delivers possession
or expressly or by implication binds himself to deliver possession of the mortgaged
property to deliver possession of the mortgaged property to the mortgagee. The
mortgagor authorizes the mortgagee to retain such possession until payment of the
mortgage money and to receive rents and profits accruing from the property or any
part of such rents and profits and to appropriate the same in lieu of interest or in
payment of the mortgage money, or partly in lieu of interest or partly in payment of
the mortgage money. After the expiry of the mortgage period, the mortgagor has right
no payment of the amount to redeem the property.

8. We do not see any illegality in the impugned order of the learned single Judge, The
appeal being devoid of merits, stands dismissed without any order as to costs.

Petition dismissed.