P.R. Sharma, J.

1. This Second Appeal has been preferred against the judgment and decree passed on 28-4-59 by the Additional District judge Morena. in Civil Appeal No 42 of 1955 whereby he confirmed the decree passed on 5 3 1955 by the Civil Judge II Class Ambah in Civil Original Suit No 43 of 1949 of his Court.

2. On the 14th of June, 1922 Murlidhar and Bhagwant mortgaged with possession certain fields situate in the zamindari village Wareh with one Tundesingh for a consideration of Rs. 54/- under a registered deed of mortgage. Thereafter the same mortgagors effected two more mortgages on 1-3-1927 in respect of some other pieces of land situate in the same village for Rs. 51/- and Rs. 384/.-respectively. Tundesingh died and was succeeded by his nephews Ramcharan, Babu and Badri sons of Tulsiram. Murlidhar on 3-7 1944 filed the suit out of which the present appeal arises for redemption of all the property covered by the aforesaid three mortgages on payment of a total sum of Rs. 486/-. He further claimed mesne profits at the rate of Rs. 40/-. per annum. Since Murlidhars mortgagor Bhagwantsingh refused to join as a plaintiff he was implicated in the suit as a defendant.

3. The defendant No. 1-Ramcharan filed a separate written-statement wherein he ractically admitted the three mortgages except in respect of a field which was described in the plaint by the number.21/4, but which Ram-charan wrongly read as No 1/4. The defendant No. 1 further pleaded that further advances amounting to Rs. 500/- were made by the mortgagees on the security of the mortgaged property. Bhagwantsingh in his capacity as manager of the joint family of which the plaintiff was a member was alleged to have borrowed a sum of Rs. 57-. Lastly it was contented that Murlidhar alone had no right to claim redemption of the mortgaged properties. In the alternative it was prayed that if redemption was allowed it should be made only on payment of Rs. 1,043/-. The other defendants denied all knowledge about the mortgage transactions as also their liability in respect of the plaintiffs claim.

4. During the pendency of the suit the Madhya Bharat Zamindari Abolition Act (No. XIII of 1951) came into force and thereafter on the 2nd of October, 1951 by virtue of a Notification issued under S. 3 of the Act all zamindari lands in the State of Madhya Bharat vested in the State.

5. The trial Court passed a preliminary decree allowing the redemption of the suit lands on payment of a sum of Rs. 486/- only. Since, however. the mortgaged lands had tested in the State it was ordered that the plaintiff would on payment of the amount aforesaid be entitled to claim the compensation awarded in respect of the suit land under the provisions of the Zamindari Abolition Act. An appeal was preferred against this decision by the plaintiff in the Court of the Addl District Judge of Morena. During the pendency of the appeal Murlidhar died on 10-8-1956 and Bhagwantsinghs name was substituted as appellant in his place. The lower appellate Court upheld the findings arrived at by the trial Court and dismissed the appeal.

6. In support of the present appeal various contentions were advanced by the learned counsel for the appellant which it is not necessary in my opinion in the present appeal to decide. It was contended by the learned counsel that according to S- 250 of the Quanoon-Mal Gwalior State the mortgagee could not acquire occupancy rights in the mortgaged lands as also that by virtue of the provisions of Ss. 90 and 94 of the Indian Trusts Act the mortgagee is bound to hold all rights acquired by him in the mortgaged property subsequent to the mortgage to the benefit of the mortgagor. On the facts of this case I do not consider it necessary to express any opinion with regard to these contentions. It is agreed before me by the counsel on either side that the only land at present in possession of the respondent is the one bearing survey No. 1120. The respondent had been in actual possession of this field as a Pukhta maurusi kashtkar In the Khasra and khatwani jamabandi for the Samvat year 1969 this field is entered in the name of Kunde, Tulsiram and Neksiram from a point of time prior to 1-3-1927 the date of the mortgage. The three aforesaid persons are the predecessors-in-title of the present respondent Ramcharan. This survey No. 1120 was altered to survey No 713 in Samvat year 1993 and to survey No. 764 in Samvat year 1996- Survey No. 764 has since that year been shown in the settlement records as the Khud-kasht of Ramcharan. On redemption of the mortgage Ramcharan is, by virtue of the provisions of S. 251 of the Quanoon Mal Gwalior State entitled to revert to his position as Pukhta maurusi holder of the field. This position was not challenged before me by the learned counsel for the appellant

7. In so far as the fields which were, after the date of the mortgage, leased out to other tenants are concerned the position stands on an entirely different footing. After the date of vesting this zamindari property vested in the State and by virtue of S. 38 of the Zamindari Abolition Act a tenant of a proprietor is to be deemed to be a Pakka tenant of the land comprised in his holding from the date of vesting. The term proprietor as used in this Section included a Malguzar as defined in sub-clause (12) of Section 2 of the Qnanoon Mal Gwalior State Samvat 1983. The definition of a Malguzar as given in sub-clause (12) of Section 2 of the Quanoon Mal Gwalior State includes a mortgagee. A mortgagee from a Malguzar would, therefore, be a proprietor within the meaning of Sec. 2 of the Zamindari Abolition Act and a tenant holding from him would be the tenant of a proprietor within the meaning of Sec. 38 of the Act.

I am, therefore, of the opinion that where subsequent to the mortgage, the mortgaged lands are let out by the mortgagee to tenants and the latter by operation of Sec. 38 of the Zamindari Abolition Act have become Pakka tenants ater the date of vesting, the mortgagor cannot, on redemption of the mortgage,be restored to possession of the fields in their possession.

8. In view of this finding it is not necessary to examine the position with regard to the other fields covered by the mortgage. Suffice it to say that there are no such fields in the chart filed by the appellant before me as were the khud-kasht lands of the mortgagors and are still in the possession of the mortgagee.

9. In the result this appeal has no force and is hereby dismissed with costs. Counsels fee Rs. 30/-.