The legal principle established is that inherited and willed land, as well as redeemed mortgaged land, should be counted towards the ceiling limit under the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973.

1. - The ceiling proceedings have started against the petitioners under the Rajasthan Imposition of Ceiling on Agricultural Holdings Act, 1973. The Sub Divisional Officer declared 22 bigha 16 biswa of land in excess of the ceiling limit and that land was declared as surplus. In appeal, the Collector held that the Authorised Officer had wrongly recognised the transfer of 16 bigha 13 biswa of land which was effected on 14.6.1973 by a sale deed and added to the land held by the holder petitioners and accordingly the Collector declared 39 bigha 9 biswa of land as surplus. In second appeal before the Board of Revenue preferred by the holder petitioners, it was held that 60 bigha of land which the holder inherited from his father, is his land and subject to scrutiny in the ceiling proceedings. Apart from that land 53 bigha of land of Phool Singh, uncle of petitioner no.1, was given to petitioner no.1 under a will, was also held to be the land of petitioners. Out of the land which has been given by Phool Singh, 23 bigha 2 biswa was mortgaged by Phool Singh in favour of some persons. Suit for redemption of mortgage was filed by Phool Singh, but was dismissed as withdrawn on 19.1.1972. It was contended by the counsel for petitioners that as the land was mortgaged and suit for redemption was dismissed, 23 bigha 2 biswa of land could not be added to the land held by petitioners. It was found by the Board of Revenue that by virtue of Section 43(4) of the Rajasthan Tenancy Act, 1955 the usufructuary mortgage of any land made before the commencement of the Act shall, after the expiry of period mentioned in mortgage deed or 20 years from the date of execution thereof, whichever period is less, be deemed to have been satisfied in full without any payment of mortgage money and shall be deemed to have been extinguished and, therefore, the land mortgaged shall stand redeemed and possession thereof shall be deemed to have been delivered free from encumberance. The mortgage being of samvat 1979 it stood redeemed and Phool Singh had right, title and interest in that land which was given to petitioner no.1 under a will. The land under mortgage was rightly given under will by Phool Singh to petitioner no.1 and the petitioners were owner of the property at the relevant time and that land shall be counted while considering ceiling limit to which the petitioners are entitled to hold.

2. I do not find any infirmity either in the reasoning given or application of law by the Board of Revenue. The order of declaration of 39 bigha 9 biswa land as surplus, is in accordance with law. However, it is submitted by the learned counsel for petitioners that the Board of Revenue had erred in holding that the land which was under mortgage, could not be surrendered because it was in possession of trespassers. Once it has been held that the mortgage stood redeemed by virtue of Section 43(4) of the Act of 1955 and possession thereof shall be delivered to the mortgagor free from all encumberances, the land belonged to the holder to whom that was given under a will. The learned counsel for State is unable to point out any provision under the Act of 1973 whereby the holder of land cannot surrender a land which is in possession of trespassers. Once it is held that the petitioners are holder of the land and are owners thereof, they have every right to surrender the land on their own choice subject to certain provisions under the Act of 1973, which does not include the land possessed by trespassers. In view thereof, it is open for the petitioners to surrender the land which belongs to them and there is no impediment in surrendering the land which may be in possession of the trespassers.

3. The petition is partly allowed. Direction given by the Board of Revenue that the petitioners can give an option for surrender of the land which shall not include the land which is still in possession of former mortgagees, is set aside. No order as to costs.Petition partly allowed.

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