JUDGMENT Mohammad Ismail, J.
1. These connected appeals arise out of a suit brought by the plaintiff for the redemption of the plots described in the plaint. It was set out in the plaint that the predecessors of defendants 1 to 9 obtained a mortgage of an occupancy holding under a deed dated 23rd August 1876 for a consideration of Rs. 599. The plaintiff further alleged that a sum of Rs. 809 should be set off on certain accounts and he offered to pay the balance to the defendants. Defendants 10 to 13 were impleaded as their names appeared in village papers with respect to certain plots covered by the mortgage. The suit was contested by the defendants on a variety of grounds but was ultimately decreed. There are two separate appeals by the two sets of the defendants. Defendants 1 to 9 form one set and the remaining defendants another. Dr. Malviya who appears for defendants 1 to 9 has strenuously argued that no suit for redemption lay as a usufructuary mortgage of an occupancy holding was not permitted by law and the plaintiff was not entitled to seek the assistance of Court for the enforcement of a contract which is not recognized by the law. At the time of the execution of the mortgage, Act 18 of 1873 was in force. Section 9 of the Act provides:
The right of tenants at fixed rates shall be heritable and transferable. No other right of tenancy shall be transferable by grant, will or otherwise, except; as between persons who have become by inheritance cosharers in such right.
2. In support of his contention learned Counsel has referred to two Full Bench decisions of this Court. In Ganga Din v. dhurandhar singh (1883) 5 All. 495 it was held that a mortgage with possession by an occupancy tenant of his cultivatory holding is a transfer within the prohibition of Section 9, N.W.P. Rent Act of 1881. It may be noted that the language of Section 9 of the Act of 1881 is similar to that of Section 9 of the Act of 1873. In Abadi Husain v. Jurawan Lal (1885) 7 All. 866 (F.B.) the same view was taken with respect to a zar-i-peshgi lease. These two cases however are no longer good law as they were specifically dissented from in a later Full Bench ruling reported in Khiali Ram v. Nathu Lal (1893) 15 All. 219. At page 227 the learned Judges observed:
No doubt a usufructuary mortgage by an occupancy tenant of his occupancy holding does for the term of the mortgage transfer such right to the possession of the land mortgaged as the mortgagor has, but it does not transfer the right of occupancy and no decree for sale of the right of occupancy could be obtained in a suit by the mortgagee under Act 4. of 1882... Even if an occupancy tenant other than a tenant at a fixed rate were to bring a suit for the redemption of a usufructuary mortgage of his occupancy holding, no decree for sale under Section 92 and no order for sale under Section 93 of Act 4 of 1882 of the right of occupancy could, by reason of the bar of Para. 2 of Section 9 of Act 12 of 1881, be made... We fail to see how Para. 2 of Section 9 of Act 12 of 1881 can apply to a usufructuary mortgage, as that word is defined in Clause (b) of Section 58 of Act 4 of 1882 of an occupancy holding by the tenant having the right of occupancy.
3. In Babu Lal v. Ram Kali (1906) 3 A.L.J. 40 a Bench of this Court held that if a usufructuary mortgage of an occupancy holding which was valid under Act 12 of 1881 was made when that Act was in force, and if the mortgagor was entitled to enforce his mortgage before the passing of the new Tenancy Act, he would be equally entitled to do so after the passing of that Act. As stated above, the same rule of law applied to a mortgage executed in 1871 when the Act of 1883 was in force. In Brij Mohan Das v. Algu (1903) 26 All. 78 it was held that Paragraph 2 of Section 9, N.W.P. Rent Act of 1881 is no bar to the creation of a usufructuary mortgage of an occupancy holding by the tenant having a right of occupancy.
4. It is manifest that in view of the authorities cited above it cannot be argued that the mortgage in question was an invalid or inoperative document. The defendants obtained possession under this mortgage and are still recorded as mortgagees of these plots. It is not open to the defendants to resile from their contract and to set up a title adverse to their mortgagor. Learned Counsel for the appellants has cited several authorities which to my mind have no bearing on the present case and therefore need not be considered. It has been argued that the defendants have been paying rent to the landlords directly and therefore they should be deemed to be the occupancy tenants of the plots in dispute. This question was specifically raised by defendants 1 to 9 in para. 12 of their written statement but the matter was not pursued further, No issue was struck on that point, nor any request appears to have been made on behalf of the defendants to frame such an issue. The reason for this omission is not far to seek. If the mortgage is operative, the mere fact of payment of rent by the defendants to the landlord direct will not affect their position as mortgagees nor will entitle them to set up their title as occupancy tenants. This payment must have been in pursuance of the arrangement arrived at between the parties at the time of the execution of the mortgage and should be deemed to be on behalf of the occupancy tenant.
5. The next point pressed on behalf of the appellants is that they obtained the plots described in Schedule B and C of the written statement under a later sale deed of 17th February 1883 and at any rate they must be deemed to be occupancy tenants in respect of these plots, It is conceded that under the Act; in force in 1883 no transfer of occupancy holding was permissible by law and a sale of occupancy holding made by the occupancy tenant would therefore be invalid. The Court below upon a consideration of evidence has come to the conclusion that the sale deed, apart from being an invalid and inoperative document, did not affect the rights of the mortgagees under the earlier mortgage because it was executed in the name of a person other than the mortgagee, although the vendee was closely related to the mortgagee. Several reasons have been given by the learned Civil Judge for holding that in spite of the execution of the sale deed the mortgage continues to subsist and that the plaintiff is entitled to redeem it. Taking all the facts into consideration I have no hesitation in holding that the Courts below have come to a right conclusion.
6. Coming to Appeal No. 416 of 1937, I am satisfied that the appellants have acquired no right in the plots in dispute which could be recognized by law. Defendants 10 to 13 acquired possession of certain plots with the permission of the other defendants. The documents obtained by them in support of their title are unregistered and therefore inadmissible in evidence. It is riot open to defendants 10 to 13 to set up a title against the mortgagors merely because they have been in possession for a number of years under a title which could not be challenged by defendants 1 to 9. I agree with the Court below that defendants 10 to 13 have got no interest in the plots in dispute. In the result the appeals fail and they are accordingly dismissed with costs throughout. Leave to appeal under Letters Patent is refused.