JUDGMENT

S. C. AGRAWAL, J.:—This appeal by Special leave relates to agricultural lands bearing Khasara Nos. 711/531 and 390 situate in village Jat Bhagola in Rajasthan. Lands measuring 3 bighas and 15 biswas bearing Khasra No. 711/ 531 were mortgaged by way of usufructuary mortgage with Sheo Ram, the father of the respondent, under mortgage deed dated November 19, 1952 executed by Kallu Ram. Lands measuring 1 bigha and 10 biswas bearing Khasra No. 390 were mortgaged by way of usufructuary mortgage with the said Sheo Ram under mortgage deed dated April 26, 1955, by Kallu Ram and the appellant. The appellant and Kallu Ram were Biswedars in respect of those lands. The case of the appellant is that on the death of Kallu Ram his property devolved on the appellant. On February 12, 1959, the Rajasthan State Legislature enacted the Rajasthan Zamindari and Biswedari Abolition Act, 1959, hereinafter referred to as the Act, which came into force on November 1, 1959. In exercise of the power conferred by sub-section (1) of Section 4 of the Act, the Government of Rajasthan issued a notification dated November 3, 1959 whereby the State Government appointed November 15, 1959 as the date for abolition and acquisition of all settled Zamindari and Biswedari estates throughout Rajasthan and vesting of such estates in the State Government. Under subsection (1) of Section 29 of the Act, as from the date of vesting of an estate the Zamindar or Biswedar thereof- became a malik of any Khudkasht land in his occupation on such date and as such malik he became entitled to all the rights conferred and all the liabilities imposed on a Khatedar tenant by or under the Raiasthan Tenancy Act, 1955. On February 27, 1970 the appellant filed a suit for redemption of the aforesaid mortgages against Sheo Ram in the Court of Munsif Magistrate, Kishangarh Bas. The defendant contested the suit and pleaded that on the abolition of Biswedari. the rights, title and, interest in the lands in question stood transferred and vested in the State of Rajasthan and the appellant did not have the right to redeem the mortgage. It was also pleaded that on the date of the creation of mortgage the appellant and Kallu Ram were not in possession of the lands and that the defendant was in possession of the lands as Kashtkar since before the mortgages. An objection to the Jurisdiction of the Civil Court to entertain the suit was also raised by the defendant. On the basis of the pleadings the Munsif framed 7 issues. Issues 1, 6 and 7, which are relevant for the purpose of the present appeal were:

(1) Whether the defendant was ploughing the fields as Khudkasht even 5 years earlier than the mortgage deeds and was in possession of the same as Kashtkar? If so, what is its effect?

(6) Whether this Court had no jurisdiction to try the suit?

(7) whether on account of coming into lorce oi the provisions of Rajasthan Zamindari and Biswedari Abolition Act, 1959 all rights, title and interest of the plaintiff are extinguished and the same vested in the State of Rajasthan and, therefore, he had no right to file this suit for redemption of mortgage deeds?

2. The Munsif treated Issue No. 7 as a preliminary issue and, by order dated April 12, 1972, he decided the said issue against the appellant and held that in view of Section 5(2)(b) of the Act, the lands stand transferred to the State and have got vested in the State and the appellant does not have any right to file the suit in respect of the same. In view of the said finding on Issue No. 7 the Munsif dismissed the suit of the appellant. The appellant filed an appeal against the said judgment and decree of the Munsif which was allowed by the Additional Civil Judge by order dated February 27, 1973. It was submitted by the appellant that he had acquired Khatedari rights in the lands at the time of the abolition of the Biswedari under the Act since the lands in question were Khudkasht lands of the appellant and, therefore, the appellant is entitled to main