A mortgagee in possession of agricultural land becomes a trespasser after the expiry of the period of mortgage or 20 years, as per Section 43(4) of the Rajasthan Tenancy Act, 1955, and is liable to be evicted under Section 183 of the Act.

1. - An important question is involved in this case as to whether after the expiry of the period of mortgage or 20 years as the case may be, in respect of agricultural land, whether the mortgagee in possession becomes a trespasser or a tenant ?

2. The present writ petition is against the judgment dated May 11, 1979, passed by the Board of Revenue for Rajasthan Ajmer and the said decision rendered in D.B. Appeal No. TA/68/75/Kota Shankarlal and Ors. v. Ram Chandra . The facts of the case are that on Kalyan was khatedar of khasra No. 89 measuring 15 bighas 17 biswas in village Chainpura. Tehsil Baran District Kota. The said land was under mortgage with the respondents Nos. 4 to 7 since S.Y. 1985, i.e. 1982. The petitioner under registered sale deed dated March 16, 1965, purchased the land in dispute from Kalyan, the recorded khatedar and mortgagor of the land in dispute. He filed a suit Under Section 183 of the Rajasthan Tenancy Act, 1955 (for short, the Tenancy Act) for possession on the ground that as many as 20 years have already expired, the respondents Nos. 4 to 7 have become trespasser and were liable to be evicted as such. The suit was contested by the respondents Nos. 4 to 7 and a plea was raised that they had purchased the land from the original khatedar Kalyan in the year 1950 and since then they are in possession of the same. The trial court framed the issues and under its judgment and decree dated September 16, 1971, in view of the judgment reported in Prabhu v. Ramdeo AIR 1969 SC 1721 , held that the petitioner has no right to get a decree for possession against the respondents Nos. 4 to 7. The learned trial court recorded a finding that the agricultural lands in dispute were under mortgage since S Y 1985 with Mathuralal and others. It may be stated that the respondents Nos. 4 to 6 are the sons of Mathuralal. But as already stated earlier, in view of the aforesaid judgment of the Supreme Court the decree was not made in favour of the petitioner. The petitioner filed an appeal against the aforesaid judgment and decree before the Revenue Appellate Authority who under his judgment dated May 9, 1975, allowed the appeal and set aside the judgment decree of the trial court and decreed the suit of the petitioner. A second appeal was taken by the respondents Nos. 4 to 7 before the Board of Revenue and the Board of Revenue reversed the judgment of the Revenue Appellate Authority and it too placed reliance on the aforesaid cake of Prabhu (supra).

3. We heard Mr. Mehrish, learned counsel for the petitioner and the Addl. Government Advocate and none appeared on behalf of the respondents Nos. 4 to 7 despite service. It may be stated at the very outset that the revenue courts came to the conclusion that the land in dispute had been mortgaged with Mathuralal in Smvat. year 1985 i.e., in the year 1928. So we assume for the disposal of the writ petition that Mathuralal who is now re-presented by respondents Nos. 4 to 7 was the mortgagee in possession under usufructuary mortgage created in his favour by Kalyan, the original khatedar.

4. The question is as to whether the ratio of the Prabhu's case (supra) has been rightly applied in this case by the Board of Revenue or not ? Before we proceed to consider the above question, it will be proper to refer to some relevant provisions of the Tenancy Act. The Tenancy Act as stated earlier came into force on November 15, 1955 i.e. Smvat. year 2012. By that time the mortgage having been created in the year 1928, almost 27 years had expired, under Article 61 of the Limitation Act period of 30 years to redeem the possession of the property mortgaged is prescribed. The said period of 30 years is to commence from the date, the right acrues. There is no material on record what was the duration of the mortgage and therefore it can be said that no period of mortgage was specified. 'Tenant' is defined in Clause (43) of Section 5 of the Tenancy Act and there can be no dispute that except where t