JUDGMENT Sen, J.
1. This is an appeal by the defendants arising out of a suit for recovery of possession of two plots namely, 170 and 176. situate in mauza Asadpur in the district of Etawah. On 16th August 1907 the plaintiffs executed a simple mortgage of 69 bighas and 6 biswas in favour of Joti Prasad for Rs. 1,000 and agreed to pay Rs. 50 annually by way of interest. In order to secure the payment of interest to the mortgagee, the plaintiffs transferred the plots in dispute to the possession of the mortgagee upon the understanding that the mortgagee was to appropriate the usufruct in lieu of interest to the extent of Rs. 45, and that the mortgagor was to pay Rs. 5 in cash to the mortgagee. For certain length of time, the plaintiffs cultivated the plots themselves, and continued to pay rent to the mortgagee. Later on they gave up possession of the two plots and authorized the mortgagee either to cultivate these two plots or to let them out to the tenants. In 1917, or thereabout the mortgagee let out the plots to defendants 3 and 4. The plaintiffs redeemed the mortgage on 18th August; 1926. They obtained formal possession of the plots in dispute but did not recover actual possession which continued with defendants 3 and 4-
2. The plaintiffs alleged that the possession of defendants 3 and 4 after the date of the redemption of the mortgage by the plaintiffs became that of trespassers and that defendants were liable to ejectment.
3. The Court of first instance dismissed the suit. The lower appellate Court has reversed the decision and decreed the plaintiffs' suit upon the ground that the legal position of the defendants after the date of redemption of the mortgage by the plaintiffs was that of trespassers and they were not justified either in law or equity to resist the action for ejectment.
4. The lower appellate Court has not been able to view the facts of the case in its proper perspective. The mortgagee was authorized under a special stipulation either to cultivate the land himself or to let out the land to tenants. In pursuance of this agreement the land was let out to tenants. This appears to have been done in the ordinary course of businees for the proper management of the property and there is no suggestion that the land was let out for an inadequate rent. Under these circumstances defendants 3 and 4 must be regarded to be the tenants of the plaintiffs after the redemption of the mortgage. My attention has been drawn to a decision of 'the Board of Revenue In re Mahant Rang Das v. Mangroo 3 Unpub. Dec. of the Board of Rev. 377. The head-note which supports the contention of the appellants is in the following terms:
A person holding from a thekadar that is a lessee of proprietary rights can aequire occupancy rights.
5. The words of the head-note do not find a place in the body of the judgment but the proposition may by a process of reasoning, be held to be a deduction or inference from the judgment. In the Collector of Basti v. Sarnam Gharak [1911] 8 A.L.J. 802 Piggot, J., held that:
tenancies created by means of a perpetual lease granted by a usufructuary mortgagee are binding on the mortgagor after the redemption of the mortgage, in so far that the relationsip of landlord and tenant continues: and that if the mortgagor desires to bring the tenancy to a close, he must do so by a regular suit under the Tenancy Act.
6. In the present case although the mortgage in its inception was no more than a simple mortgage but by the subsequent agreement between the parties it became a mortgage of a different character qua the arrangement as to the payment of interest.
7. The principle enunciated in the last mentioned case is applicable to the facts of the present case. The fact that there was no lease at all makes no difference. The fact that the mortgagee was not granting a perpetual lease to defendants 3 and 4 is not the argument against the view that he was letting out the land for purposes of husbandry in the ordinary course of management.
8. The redemption of the mortgage by the plaintiffs does not put an end to the tenancy created in favour of defandants 3 and 4. It is not necessary for me to consider as to whether the position of defendants 3 and 4 is that of a statutory tenant under Section 19 of Act 3 of 1926 (local). In the view that I take of the case the appeal succeeds. The result is that I decree the appeal, set aside the decree of the lower appellate Court and restore that of the Court of first instance with costs throughout.