Full Judgment
1. This appeal arises out of a suit brought by the plaintiff-appellant for recovery of possession of an occupancy-holding as mortgagee thereof. The tenant of the holding mortgaged it to one Selamat Ali who subsequently assigned the mortgage to the plaintiff. After having mortgaged his holding the tenant relinquished it, and thereupon it is said the defendant, the zamindar, took possession of it. The plaintiff, as purchaser from the mortgagee, claims to recover possession on the ground that the tenant after having mortgaged the holding was not competent to relinquish it.
2. The Court of first instance decreed the claim and the lower Appellate Court affirmed the decree.
3. On second appeal to this Court the learned Judge who heard the appeal dismissed the suit on the ground that the plaintiff had not brought it within six months of the date of the dispossession of himself or his vendor. The learned Judge apparently arrived at his finding on the question of dispossession on the basis of certain mutation proceedings. We find, however, that upon that question there is a clear finding by both the Courts below. The Court of first instance before which, the plea of limitation was raised found that the defendant No. 2, the original mortgagee, was in possession till Asarh last, which was well within 6 months before the institution of the suit'. This finding was questioned in the appeal to the lower Appellate Court and that Court made the following remarks: 'The plea of limitation is based on the assumption that the plaintiff-respondent had been out of possession for more than 6 months prior to the suit, which assumption is not borne out by any reliable evidence. The plea of limitation falls to the ground'. This is a clear finding of fact to the effect that the dispossession of the plaintiff or his predecessor-in-title did not take place more than six months prior to the institution of the suit. In second appeal this Court was bound to accept this finding of fact and could not arrive at a, contrary finding. We are also of opinion that the order as to mutation of names was not sufficient evidence of the actual period of possession of the defendant. For these reasons the ground on which the learned Judge of this Court dismissed the plaintiff's suit cannot, in our opinion, be supported. The tenant who was the mortgagor in this case, after having made a mortgage of his holding could not relinquish it and thereby derogate from his own grant. It has been found that his legal representative, namely, his son, is still alive. Therefore, until the mortgage is redeemed, the plaintiff who has stepped into the shoes of the original mortgagee is entitled to remain in possession of the holding so long as the tenancy is not legally determined.
4. We accordingly allow the appeal, set aside the decree of the learned Judge of this Court with costs and restore that of the lower Appellate Court.