JUDGMENT
1. We have some to the conclusion that this order is wrong and that the appeal must be disposed of by the Court below on the merits, The suit is a comparatively simple one, although the allegations are somewhat alarming and must be seriously dealt with as a question of fact. The plaintiffs claim to be the usufructuary mortgagees of the property in suit. They allege that they became the usufructuary mortgagees by virtue of a mortgage made in the year 1915 in their favour by a fixed rate tenant of the name of Rasha Kuer, who is now dead. She was the tenant of two of the defendants who are the Zemindars of the property. Apparently nobody has been appointed her legal personal representative and nobody has some forward to claim in her right the possession of the outstanding interest in the tenancy. Possession, of course, remained with the plaintiffs, inasmuch as the mortgage was a usufructuary one. In our view, according to the settled principles of Contract Law which must govern tenancy questions, the creation of a usufrustuary mortgage does not and cannot operate to. extinguish the tenancy, The mortgagor continues to be the tenant having only the equity of redemption in possession, and having parted with the actual possession of the land in favour of the mortgagee. Unless there is some overriding Statute which effects that position, the mortgagee does not become a tenant or enter into any relationship with the Zemindar by merely taking a security over the tenancy from the mortgagor, Nor does the fast of the mortgagor's death create an interruption in the relationship between the parties. It merely extinguishes the living representative of the tenant and in, the ordinary course the heir or legal representative, when ascertained, becomes the tenant in succession to his deceased, predecessor. Upon the appeal of this mortgagor it is alleged that the Zemindar got hold of somebody in collusion with himself for the purpose presumably of defeating the rights of the mortgagees, and if the argument for the respondents before us is correct, he would appear to have succeeded and presuaded that person to allow his name to be substituted as heir on the Revenue Records. Having thus paved the nay for a destruction of the tenancy, he took a relinquishment from this alleged bogus tenant and granted a perpetual lease to the son, Mahabir Singh, the result of which, if successful, would be to cost the mortgagees.
2. In passing, we may observe that although there is authority, to which we will refer in a moment, for the attitude taken up by the respondents before us, it is a little odd that they should come here and argue that the present plaintiffs are their tenants and that this suit by the plaintiffs is a suit for the determination of the nature of the tenancy, when they themselves have taken the relinquishment of the tenancy from somebody totally unconnected with the plaintiffs. How they reconcile in their own minds these two attitudes is more than we can say, but on these allegations the plaintiffs have brought this suit claiming a declaration that the fixed rate tenancy is still in existence; that the plaintiffs are the usufruatuary mortgagees thereof; that these alleged collusive proceedings were fraudulent and void against them and are ineffectual to disturb their rights or affect their right to possession as mortgagees. They have not added the non sequential relief which is occasionally demanded, that the alleged relinquishment, if it is in writing, and the perpetual lease shall be delivered up to be cancelled or destroyed, but assuming the plaintiffs established their allegation, that would be a relief to which they would be clearly entitled and which the Court may grant them under the general omnibus clause which has been added at the end of the plaint. So stated, it is difficult to see how anybody could contend that such an action could not be properly brought in the Civil Court. In our view it could only be brought in the Civil Court. The justification for the view taken by the lower Appellate Court is this, and if the authority to which we will refer in a moment is to be accepted as sound, the contentior would seem to be right, though somewhat startling. It is said that the plaintiffs being usufruatuary mortgagees and in possession the mortgagor being dead, in the ordinary course of business the mortgagees have paid the rent to the Zemindar who has accepted it. Being persons who have paid rent or are paying rent to the Zemindar, they art therefore, tenants within the meaning of Section 4, sub Section (5) of the Agra Tenants Act, and being tenants they must be in possession of the tenancy and as the action is brought to declare their rights, whatever they may be, inasmuch as it follows from the. previous contention that they must be the rights of a tenancy, the action must, therefore, be translated into an action to determine the nature of the tenancy within the meaning of Section 95 of the Agra Tenancy Act. If this syllogism is sound, the conclusion is inevitable and the action is one which ought to have been brought in the Revenue Court and apart from Section 197, with which we do not think it necessary to deal, the lower Appellate Court would have been right, but the contention is so astounding and produces results so illogical that there must be a Tallasy in it somewhere. Reliance is placed upon the decision of Mr. Justice Piggott in the case of Ram Narain Singh v. Rampat Bhagat 16 Ind. Cas. 1007 : 10 A.L.J. 178, in which it was held that a usufruatuary mortgagee of a fixed rate tenancy, in possession of the holding under the terms of his mortgage and paying rent for the same to the landholder, is a tenant of the holding within the meaning of Section 79 of the Tenancy Act. With all respect to the learned Judge we are unable to agree with this view, although we are not prepared to state that in dealing with the case which he was deciding, he was necessarily wrong. In the first place, it should be pointed out that you cannot have two tenancies at the same time, of the same property held of the same landholder by two different persons in inconsistent interests. To hold that a mortgagee who in fact pays the rent of the tenancy to the Zemindar thereby becomes a tenant of the Zemindar, is equivalent to holding that the tenancy has been extinguished by the operation of law as the result of the granting of the mortgage. This is clearly a fallacy. A mortgage of a tenancy does not extinguish it. The equity of redemption remains with the mortgagor and cannot be destroyed. Secondly, a contract of mortgage between a mortgagor and a mortgagee cannot of itself or create a contract with a third person and I there is so contractual relationship between 1 the mortgagee and the Zemindar, Payment of rent under such circumstances is not, in our view, sufficient to create a contract of tenancy where none existed, but must be treated as payment made for and on behalf of the tenant who remains liable under his contract. Thirdly, is the case in question the ratio decidendi turns upon the definition of a tenant contained in Section 4, Sub-section 5. The words are as follows: Tenant means the person by whom rent is, or but for a contract, expressed or implied, would be payable." It seems to us that the learned Judge overlooked the significance of the saving clause in that definition. Prima facie rest in payable by the mortgagor. If it is true to say that by reason of the existence of the usufructuary mortgage, the course of business by which the mortgagee has regularly paid rent to the landholder, the mortgagee has become the person by whom rent is payable, then the proviso comes into play, and it is equally true to say that the mortgagor is the person by whom but for the contract, expressed or implied, arising out of the usufructuary mortgage, the rent would be paid. We have some to the conclusion that we cannot follow that decision. There is no contract of tenancy alleged at all or which can arise out of the alligations in the plaint in this suit. It is not a suit which could possibly come within the category defined in Section 95. The argument of the respondents fails and the appeal succeeds and the case will be remained to the lower Appellate Court to be disposed of according to law. The appellants must have the costs of this appeal.