JUDGMENT K.N. Seth, J.
1. In consolidation proceedings Smt. Rukmini filed an objection to the effect thet the plots in dispute were occupancy holding of her husband Behari. In June, 1908, these plots were mortgaged by Kaushilaya, the pre-decessor-in-interest of Behari, in favour of Sri Khireshwar, predecessor-in-interest of the petitioners. She claimed that Behari died after the date of vesting and since Behari was recorded as tenant-in-chief, after his death she inherited the land in dispute, as Sirdar and the petitioners were mere Asamis. The claim was contested and it was pleaded that the petitioners, who were ex-Zamindars, being in possession of the land in dispute, acquired Bhumidhari rights. In the alternative it was asserted that mortgage of the occupancy holding being void and no suit having been filed for possession within the period of limitation, the petitioners acquired Sirdari rights on the date of vesting.
2. The Consolidation Officer accepted the claim of the petitioners that they had acquired Sirdari rights and directed that their names be recorded as Sirdars. The Settlement Officer (Consolidation) allowed the appeal filed by Smt. Rukmini holding that after the death of Behari, she acquired Sirdari rights and she was entitled to have her name recorded as Sirdar. The Deputy Director (Consolidation) dismissed the appeal of the petitioners holding that the mortgage was not more than sixty years' old as claimed by them and that they still held the land as mortgagees and, therefore acquired only Asami rights and the respondents acquired the status of Sirdar. The petitioners thereafter preferred a revision which was dismissed as not maintainable. Dismissing the petition of the appellants, a learned Single Judge of this Court negatived the claim of the appellants that they were Bhumidhars as well as the alternative claim that the petitioners became Sirdars of the plots in dispute. The learned Judge also held that the revision filed by the petitioners before the Joint Director of Consolidation was not maintainable.
3. During the course of argument, learned counsel for the appellants confined his case to the claim of Sirdari rights over the plots in dispute on the ground that assuming that there was a mortgage, this mortgage could be accept- ed only on the principle of sub-letting and once that principle was accepted, the petitioners acquired Adhivasi and thereafter Sirdari rights on the passing of the U. P. Zamindari Abolition and Land Reforms Act. in this connection, it was also urged that if the mortgage was held to be a valid mortgage then on the expiry of sixty years the mortgage came to an end and the petitioners became tenants and thereafter Sirdars of the plots in dispute. The latter ground on which Sirdari rights have been claimed must be negatived in view of the finding recorded by the Deputy Director (Consolidation) that it has not been proved that the mortgage was more than sixty years old. Moreover, as laid down in Barhu Singh v. Kharpattu, (AIR 1956 All 436), the mortgagee of an occupancy holding under the Rent Act of 1881 would have no right to claim extinguishment of the mortgagor's interests in the property by the enforcement of the rights created by the mortgage. If the mortgagee does not get any interest in the occupancy holding he cannot claim to obtain that interest by expiry of the period of limitation fixed for the redemption of the mortgage. The right of redemption of the mortgagor in a usufructuary mortgage of this nature will, therefore, not be deemed to have become barred by lapse of time under Article 148, Limitation Act.
4. The argument that the mortgage could be accepted only on the principle of sub-letting and that once that principle was accepted, the petitioners, as sub-tenants of the plots in dispute, acquired Adhivasi and thereafter Sirdari rights on the enforcement of the U. P. Zamindari Abolition and Land Reforms Act, appears to be based on the principle laid down in Lallu Singh v. Ram Nandan, (AIR 1930 All 136 (FB)). In that case a tenant usufructuarily mortgaged his holding in 1886. Subsequently in 1893 and 1898, he executed a second and a third bond hypothecating the holding in lieu of fresh advances agreeing not to redeem or resume possession without paying not only the sum advanced under the first deed but also the amounts due under the second and the third. It was held by Mukherji, J. that : (at pp. 139,
140) "a usufructuary mortgage of an occupancy holding was in the nature of a sub-letting and to that extent the mortgage was allowable.....
The mortgage of 1886 can therefore, be upheld only as a mere sub-letting on the part of the mortgagors to the mortgagee."
King, J. relied on the Full Bench decision in Khiali Ram v. Nathu Lal, (1893) ILR 15 All 219, that although the 'right of occupancy' was declared to be not transferable, the Legislature did not intend to prohibit the occupancy tenant from transferring the 'right to occupy' or the right of possession, by way of sublease or usufructury mortgage. Niamat-ullah, J. was of the opinion that a usufructuary mortgage, as such, of an occupancy holding under the Act of 1881 was invalid but that Khiali Ram's decision (supra) must be accepted. He further held that the ratio decidendi of that case, so far as it related to usufructuary mortgages of occupancy holding, was that such mortgages were valid only to the extent that right to occupy is transferred on condition that possession is to be retained by the creditor till money is paid and that it was invalid so far as it may give a right to the creditor to realise his money by sale of the property. The rule laid down in Lallu Singh's case (supra) and other cases on the point have been explained in Barhu Singh's case (AIR 1956 All 436 at p, 439) (supra). Agarwala, J. observed :--
"Upon a consideration of all these cases in my opinion it must be held that a usufructuary mortgage of an occupancy holding created when the N.W.P. Act No. 12 of 1881 was in force must be treated as a valid transaction but in a qualified sense, i.e., in the sense of subletting with a covenant that the mortgagor will not be entitled to recover possession without payment of the mortgage money and further that a transfer of the occupancy holding was not created by the mortgage but a mere right to occupy the holding was created upon certain covenants."
While it is true that a mortgage of an occupancy holding may be treated as a valid transaction on the principle of subletting but since the transaction could not create any interest in the land, it could not confer the right of a sub-tenant on the mortgagee. His status could be held to be that of a licensee only.
5. In the present case, the mortgagees were put in possession of the land but since no interest in the land was created in their favour, they could not legally claim to be the sub-tenants and, consequently, did not acquire Sirdari rights on the enforcement of the U. P. Zamindari Abolition and Land Reforms Act. The claim has been rightly negatived.
6. The appeal has no merit and is dismissed. Parties shall bear their own costs.