JUDGMENT
Kanhaiya Lal, J.
1. Musammat Lagha had an occupancy holding which she mortgaged with possession in favour of the defendant in lieu of Rs. 99 on the 12th September 1907. The mortgage remained in possession of the holding without any objection having been taken to the said mortgage by the proprietors of the village. The present suit has been filed by the plaintiffs for possession of the occupancy holding. In the plaint they offered to pay Rs. 99 to the defendant. The contention of the defendant was that as the mortgage was invalid his possession was adverse and that the claim was consequently barred by limitation.
2. The Courts below held that the possession held by the defendant was permissive and that though the mortgage was invalid the plaintiffs were entitled to get possession of the occupancy holding.
3. The learned Counsel for the defendant-appellant contends that the defendant is entitled to retain possession of the occupancy holding because he has since purchased a proprietary share in the village. But the purchase would not clothe him with a higher position than that which he occupied when he was originally let into possession of the holding by the mother of the plaintiffs. The occupancy holding has not become extinct, because no step was taken by the landlord to eject the plaintiffs or their mother from the holding by reason of that transfer, under Section 57 (d) of the Agra Tenancy Act (II of 1901). The execution of an illegal transfer does not ispo focto terminate the interest of a tenant. The landlord must sue to eject him and till such ejectment is claimed and decreed the tenancy continues. If, before, such ejectment is sought, the illegal transfer is cancelled or comes to an end by voluntary redemption or otherwise, the tenancy would continue to subsist.
4. In Bamzan v. Bhukal Rai 47 I.C. 852 (1918) 16 A.L.J. 747, it was held under similar circumstances that an occupancy tanant was entitled to get back possession on his paying the mortgage-money, as he had offered to do. By allowing the plaintiffs to get back possession of the holding the Court is not giving effect to the mortgage or recognising its validity. It is merely restoring to the plaintiffs the occupancy holding which was and still is his and ousting a person who had taken an illegal possession under a permissive title. The learned Counsel for the defendant-appellant has referred to the decision in Banmali Pande v. Bisheshar Singh 29 A. 129 : 3 A.L.J. 731 : A.W.N. (1906) 300, but in that case a suit had been brought by a subsequent mortgage who bad no lawful title. The present suit has been brought by the occupancy tenants whose title still subsists. There is no reason, therefore, for interference with the decree passed by the Court below in second appeal, which is hereby dismissed.
