Om Parkash, J.
(1) This is an appeal against an order of the learned District Judge, Sirmur District, whereby he allowed an appeal against the order of the Compensation Officer. The land, measuring 99 Bighas and 8 bids was comprised in Khasra Nos. 115, 120. 124, 129 and 141 situate in village Rampur Majri, Tehsil Paonta, District Sirmur, had vested in the State Government under section 27(1) of the Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act. 1953 (hereinafter referred to as the Act). ,
(2) The land was in possession of occupancy tenants-Babu, Madho, Baru; Mangta, Bagga, Pratapa, Behari and Banwari. Babu had one-third share- Madho and Baru sons of Sunder had one third share and Mangta, Bagga.. Pratapa, Behari and Banwari sons of Maiya had one third share. In the revenue records, the share of Babu was recorded as one-half. But it was conceded before the learned District Judge, and has not been disputed in the present appeal, that the share of Babu was one-third only and the share of the remaining two branches was one-third each.
(3) On the vesting of the land in dispute in the State Government, the Compensation Officer issued notices to the interested parties to file their objections against the grant of proprietary rights in the land to the occupancy tenants. Babu had died during the pendency of the proceedirgs. His legal representatives were Kaka, Ram Sarup and Gita. Kaka, one of the leagal representatives of Babu and Behari son of Maiya appreaed before the Compensation Officer on 13th August, 1965 and made statements that the legal representatives of Babu were occupancy tenants to the extent of one-third share and the other two branches were occupancy tenants to the extent of two-third share. They further stated that proprietary rights may be granted accordingly. Behari son of Maiya had also stated that the one-third share of Kaka and others was mortgaged with remaining two branches of the occupancy tenants.
(4) The Compensation Officer recorded further evidence on 31st August, 1965. Mansha, the Sarpanch of the ilaqa in which the land in dispute was situated, had stated that the share of Kaka and others was mortgaged with Madho and others for Rs 950-. He had further stated that the land in dispute was being cultivated by Madho, Bagga, Behari, Paratapa and Banwari. Madho son of Sunder had stated that the land in dispute was being cultivated by him and his brother for the last 140 years. He had prayed that the proprietary rights in the land in dispute be granted to him and his brother only. Behari son of Maiya was again examined on 31st August, 1965. He had reiterated that the one- third share of Kaka and others was mortgaged with the remaining two branches of the occupancy tenants and that these two branches were entitled to the grant of proprietary rights of two-third share only.
(5) The Compensation Officer, vide his order dated 14th September 1965 held that ther was no evidence that Madho, Baru, Mangta, Bagga, Pratapa, Behari and Banwari were only the mortgagees of the one-third share of Babu and not the tenants-at-will. He further held that neither Babu nor his legal representatives were in cultivating possession of the land as tenants. He, thereforee, granted proprietary rights in the land in dispute to Madho, Barn, Mangata, Bagga, Pratapa, Behari and Banwari only.
(6) The legal resresentitives of Babu went up in appeal to the learned District Judge, who reversed the finding of the Compensation Officer that Madho and others were in possession of the share of Babu as tenants. The learned District Judge held that Madho and others were in possession as mortgagees of the land not and as tenants and were thereforee, not entitled to the grant of proprietary rights in one third share of the land of Babu. The learned District Judge set aside the order of the Compensation Officer and directed that the proprietary rights in the land in dispute to the extent of one-third share should be transferred in favor of Kaka, Ram Sarup and Gita on payment of proportionate amount of compensation to be determined by the Compensation Officer payable to the State Government.
(7) Aggrieved by the order of the learned District Judge, Madho, Baru, Mangta, Baga Pratapa, Behari and Banwari have came up in appeal to this court.
(8) It was contended by the learned counsel for the appellants that the Compensation Officer had no jurisdiction to go into the question whether the appellants were mortgagees or tenants at will of one-third share of Babu under the Act that the orders of the Compensation Officer as well as of the District Judge deciding the aforesaid question were without jurisidiction and illegal. The learned counsel, in this connection, referred to sections 26 and 27 of the Act. The learned counsel for the respondents, on the other hand, contended that the rules, framed under section 26 of the Act empowered the Compensation Officer to decide the question whether the appellants were tenants or mortgagees. Section 27 reade:- (1) Notwithstanding anything contained in the foregoing provisions of this Chapter, a landowner who holds land, the annual land revenue of which exceeds Rs 125 per year, the right, title and interest of such owner in such land shall be deemed to have been transferred and vested in the State Government free from all encumbrances. (2) Nothing contained in sub-section (1) shall apply in respect of such land which is under the personal cultivation of the landowner. (3) The landowner whose rights are acquired under sub-section (1) by the State Government, shall be entitled to receive compensation which shall be determined by the Compensation Officer having regard to sections 17 and 18 of this Act, in accordance with the provisions of Schedule Ii, but in the case of such occupancy tenant who is liable to pay rent in terms of land revenae or the multiple of land revenue, the Compensation payable to to his landowner shall be computed in accordance with Schedule. (4) The right, title and interest of the landowner acquired under sub-section (1) or (2) shall be transferred by the State Government on the payment of compensation in accordance with Schedule . I to such tenant who cultivates such land. (5) The State Government shall give rehabilitation grant according to the rules framed under this Act, to such small landowner whose right, title and interst have been extinguished and who does not have any other means of livelihood.'
(9) Section 26 empoweres the State Government to make rules to carry out the purposes of Chapter Iii in which sections 27 and 26 of the Act find place. Section 26 reads:- (1) The State Government may make rules to carry out the purposes of this Chapter. (2) In particular and without prejudice to the generality of the foregoing provisions, such rules may provide for:- (a) all matters expressly required or allowed to be prescribed; (b) the procedure to be followed by the Compensation Officers in the discharge of their duties and functions; (c) the manner of determining the compensation payable by the tenant to the landowner under sections 1.: and 13; (d) the manner in which the compensation is to be deposited by a tenant in the treasury; (e) the manner in which the compensation is to be paid to the landowner; (f) the principal and manner of determining rehabilitation grant; (g) Fees, if any, to be paid on the application or petitions under this Chapter; (h) transfer of proceedings from one compensation officer to another; (i) manner of publication of notices; and (]') generally, for the guidance of Compensation Officers and other persons in matters connected with the enforcement of the provisions of this Chapter.'
(10) The State Government had framed Rules under section 26 of the Act. Those Rules arc called the 'Himachal Pradesh Abolition of Big Landed Estates and Land Reforms (Mode of payment of Compensation and Grant of proprietary Rights) Rules, 1963. These Rules provide procedure, inter alia, for determining compensation, payable to the landowner whose land has vehted in the State Government under section 27 (1), for grant of proprietary rights to the cultivating tenant and for determining compensation payable by the tenant to the State Government. Rule 13 reads:- '(1) Immediately on recepit of the file referred to in the preceding rule, the Compensation Officer shall cause the particulars of the same to be entered in his register in from 'H'. (2) The Compensation Officer after making inquries considered nec(r)ssary will issue a notice in form 1' to all concerned, inviting objections within a month in regard to the conferment of proprietary rights on the cultivating tenant under sub-section (4) of section 27 o the Act, as also to the amount of compensation proposed to be paid by the tenant to the State Government.'
(11) Rule 14 lays down that the Compensation Officer, aftermaking necessary inquiries and deciding objections, if any, received, proceed to determine finally the amount of compensation payable by the tenant to the State Government.
(12) A perusal of the sections and the Rules, referred to above, indicates that it is incumbent on the State Government to transfer the right, title and interest of the lanowner which has vested in it to the cultivating tenant. Section 9 of the Act empowers the State Government to appoint Compensation Officers for carrying out the purposes of the Act. The State Government could validly entrust the Compensation Officers with transferring lanowners' rights to the tenants, which is one of the purposes of the Act. Under Rule 13 aforesaid, the Compensation Officer is to invite objection? in regard to the conferment of proprietary rights on the cultivating tenant'. Under Rule 14. the Compensation Officer is to decile the objections. The clear infernce from Rules 13 and 14 is that the jurisidiction to determine whether a person claiming to be a tenant is in lact a tenant or not is an integral part of the jurisdiction conferred on the Compensation Officer for the grant of proprietary rights to the tenant. The contention of the learned counsel for the appellants that the Compensation Officer had no jurisdiction to decide the question whether the appellants were tenants-at-will or mortgagers of one-third share of the occupancy tenancy of Babu is not well-founded and is to be rejected.
(13) It was next contended by the learned counsel for the appellants that the learned District Judge erred in holding that the appellants were mortgagees of the share of Babu and not tenants-at-will. The learned counsel pointed out that the mortgage effected by Babu in favor of the appellants was void as it contr avened the provisions of section 68 of the Act. That section lays down that any transfer of the interest of a tenant except as permitted by the proviso to clause (c) of sub section. 19 of section 54 shall be void. The learned counsel for the respondents argued chat the mortgage effected by Babu in favor of the appellants was not hit by section 68 as the word 'tenant' used in that section meant only tenant-at-will and not an occupancy tenant. The argument of learned counsel is not sound, section uses the word 'tenant and not occupancy tenant'. The word 'tenant' will include both a tenant-at will as well as an occupancy tenant. The mortgage effected by Babu in favor of the appellants was void under section 68. But as was pointed out by the learned counsel for the Resoondents the mortgage de:d could be looked into for the purpose of ascertaining the nature and character of the possession of the appellants, that is, whether they were in possession as tenants-at will or mortgagees, vide Janki Koeri v. Jamuna Koen.
(14) From the terms and conditions embodied in the mortgage deed dated 31st May, 1963 executed by Babu in favor of the appellants, it is quite clear that the intention of the parties was to create a mortgage and not a lease. Babu had taken a loan from the appellants. The transfer of the occupancy tenancy was intended to be a security for the payment of the loan. The appellants were not liable to pay any rent to Babu, The parties had unequivocally declarer that the transaction was a mortgage It is to be noted that Behari, one of the appellants, had admitted in unmistakable termes before the Compensation Officer that share of Babu had been mortgaged with the appellants It follows that the appellants were in possession of the share of Babu as mortgagees and not as tenants-at-will and the entry in the Janubandi of 1961- 62, showing them as tenants-at-will of the share of Baba was not correct. There is a plausible Explanationn for the Jamabandi entry. The appellants were put in possession of the share of Babu as mortgagees. The mutation of the mortgage was void. As the mutation of the mortgage had been rejected, the appellants who were in possession, could not be shown as mortgagees. They were shown as tenants-at-will.
(15) As the appellants were in possession as only mortgagees of Babu's share, Babu will be deemed to be in possession as an occupancy tenant through the appellants.
(16) Lastly, it was contended by the learned counsel for the appellants, that there was nothing to show that the appellants were not tenants-at-will of Babu's share on 26th January, 1955, the date on which the land had vested in the State Government and that the order of the District judge rejecting the claim of the appellants to Babu's share was erroneous. The contention is not sound. The Compensation Officer had issued notices to the appellants for filing objections against the grant of proprietory rights. It was for the appellants to prove that they were tenanis-at-will of Babu's share in 1955. The appellants did not lead any evidence in this respect. Madho appellant had made a vague statement that he and his brother were cultivating the land for the last forty years. This vague statement did not establish any tenancy of Babu's share. On the other hand, the Misal Haqiat for 1958-59, showed that Babu and the appellants were jointly cultivating the land in dispute. The appellants were not shown as tenants-at-will in the Misal Haqiat. Under section 114, illustration (d). Evidence Act, it can be presumed, from the entry of the Misal Haqiat 1958-59, that Babu and the appellants were cultivating the land in dispute jointly in 1955 and that the appellants were not tenants-at will of Babu's share. The presumption of continuance can operate retrospectviely also, vide Ambika Prasad Thakur and othtrs v. Rum lqbal Rai.
(17) No other point was urged in the appeal which is dismissed with costs.