1. I have listened to long arguments in this case, and although J am not disposed to agree with certain findings of fact arrived at by the lower appellate Court I am nevertheless bound by them. The suit was a suit by two minors asking for a declaration of their occupancy right in a certain holding. There can be no doubt whatever that this occupancy tenancy was mortgaged by the plaintiffs’ father Baldeo in October 1893, in favour of two of the zemindars of the village, Safdar Husain and Fakir Husain. It is clear also that on the 12th of April 1918, a suit for redemption was decreed in favour of the sons of Baldeo on payment of a sum of Rs. 47. In that suit the defendants were the representatives of Safdar and Fakir, the original mortgagees.
2. Prior to this redemption suit it appears that Baldeo had mortgaged this occupancy holding again with a man named Durga Charan for a period of 12 years and had left a sum of Rs. 99-l5-0 with Durga Charan to redeem the earlier mortgage. We may ignore this transaction altogether, however, for under the provisions of the Tenancy Act this mortgage was altogether void. Since the Agra Tenancy Act came into force an occupancy tenant is not allowed to mortgage his holding. What happened after the redemption suit was this: There is evidence to show that no actual physical possession was obtained by the sons of Baldeo after the decree for redemption. They obtained an order for formal possession on the 15th of June 1919. The finding of fact of the learned Judge of the Court below is that at no time after the date of redemption did the plaintiffs succeed in getting physical occupation of the tenancy.
3. After this redemption had taken place the mother of these minors applied to the revenue Court and asked for correction of the village papers saying that her sons were entitled to be recorded as occupancy tenants after the redemption and that the names of certain other persons had been entered as non-occupancy tenants. The contest in this case was between one Abdul Wahab and the mother of the minors. Abdul Wahab being a son of one Kobra Bibi in whose name apparently some entry had been made to the effect that the lands in dispute were her khudkasht. However that may be, the Collector in his order, dated the 16th November 1921, stated that the parties had agreed that the Assistant Collector and Sub-Divisional Officer should take proceedings under Section 42 of the Revenue Act for the purpose of determining what class of tenants the minor sons of Mt. Mania were. After this Mt. Mania appeared before the Assistant Collector and put in-an application to the effect that she had no longer any claim as the holding had been abandoned. I should myself have thought that from the history of these proceedings this was a wholly fraudulent business on the part of Mt. Mania but unfortunately the District Judge has come to a contrary conclusion. The result of all this was, of course, that the plaintiffs lost all right to have their names recorded as occupancy tenants.
4. It seems to me that after redemption the sons of Baldeo became entitled to physical possession of this occupancy tenure; the tenure was in the possession of their father Baldeo at the time of the mortgage and they were entitled to have actual possession restored to them. They have not, however, on the finding of the Court below managed to get actual possession, and I think it must, therefore, be held that their right to this occupancy tenure has now become extinguished. Under Section 79 of the Tenancy Act they ought to have sued for actual physical possession within six months at least from the 15th June 1919, when they obtained formal possession. In these circumstances I find myself unable to interfere with the decision of the Court below. I dismiss the appeal with costs.