SHEOBARAN Vs. BINAIK DAT

JUDGEMENT

(1.) THIS appeal arises out of a suit for recovery of possession of an occupancy holding. The plaintiff bases his claim on a usufructuary mortgage which he obtained from Musammat Bahuta in 1871. Musammat Bahuta was then the occupancy tenant of the holding in suit and continued to be such until her death. Musammat Bahuta died somewhere about the year 1900. The plaintiff alleged that after her death the defendants entered into possession of the holding and continued paying interest to the plaintiff up to three years before the suit when they stopped making any payment. The plaintiff, therefore, instituted the present suit for possession under his mortgage or in the alternative to recover the mortgage-money. The Court of first instance dismissed the suit holding that on the death of Musammat Bahuta, the last occupancy tenant, who died without leaving any heir, the occupancy tenancy lapsed to the zamindar and that the plaintiff's title as mortgagee from Musammat Bahuta determined therewith. Further on the death of Musammat Bahuta, the landlord had given the holding to the defendants and thereby created a new tenancy. The lower appellate Court reversed the decision of the Court of first instance. The learned District Judge did not decide whether the defendants entered into possession of the holding from the plaintiff or from the zamindar, but, being of opinion that the mortgage still subsisted, held that the plaintiff was entitled to succeed and, therefore, decreed the suit. The defendants appeal. The contention advanced being that the view taken by the Court of first instance was correct. I have been referred to the cases of Pahalwan Singh V/s. Satrupa Kunwar A.W.N. (1905) 178 : 2 A.L.J. 471; Ram Lal V/s. Chunni Lal 2 A.L.J. 69 : 27 A. 372 and Dalip Rai V/s. Deoki Rai 21 A. 204. It would appear that on Musammat Bahuta's death without heir, the tenancy in the natural course of things would lapse to the zamindar On behalf of the respondents, I have not been referred to any authority in support of the proposition that the mortgage of an occupancy holding which, under Act XII of 1881, would be valid still subsisted after the occupancy tenancy had come to an end. The plaintiff chose to lend money on security which could only have any value as long as his mortgagor continued to be the occupancy tenant of the holding. I do not think it necessary for the decision of this appeal to have a finding on the question from whom the defendants obtained possession of the holding in suit. The plaintiff's suit is based on a title as mortgagee and, in my opinion, the Court of first instance rightly held that that title was extinguished when on the death of the mortgagor without heirs the occupancy tenancy came to an end. I allow the appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance. The appellants will have their costs in all Courts.