JUDGMENT
B.B. Ghose, J.
1. Tins appeal arises out of a suit for recovery of possession of certain lands on the ground that the plaintiff and defendants Nos. 1 to 3 were co-sharers with regard to a mirash right and that by a partition the lands in suit have been assigned to the share of the plaintiff. The plaintiff
is, therefore, entitled to recover khas. possession of these lands. He was resisted by defendants Nos. 1, 2 and 3 and by another set of defendants Nos. 4 to 6. The plea of the defendants Nos. 1 to 3 was that they were occupancy raiyats on the lands in dispute from before they had acquired any interest in the mirash and that the plaintiff was not entitled to recover khas possession of the lands in suit. The defendants Nos. 4 to 6 alleged that some of the plots in suit, were in their possession by virtue of a mortgage executed in their favour by defendants Nos. 1, 2 and 3 and that if the plaintiff sought to recover possession as against them, he was bound to redeem the mortgage.
2. The Court of Appeal below affirming the decision of the trial Court has found that the plaintiff has maliki interest in the entire lands in suit. The defendants Nos. 1 to 3, however, have established their plea that they have an occupancy right in the lands and that although some of the defendants mortgaged a portion of their holding to defendants Nos. 4 to 6 on the allegation that they had mirash right, as a matter of fact they had no mirash right at the time of the mortgage. Therefore, the mortgagees only got a mortgage of the occupancy right in the portion of the jote mortgaged to them. On these findings he dismissed the plaintiff’s claim for khas possession of the lands in suit.
3. The only point argued before us is that the defendants having put forward a mirash right to the disputed lands and having mortgaged the lands on the assertion of that right, it is not open to them to pl6ad an occupancy right in the disputed lands. This argument we are unable to accept. An assertion by the defendants of a higher right than what they actually have, will not cause a forfeiture of their rights as occupancy raiyats. The plaintiff is, therefore, not entitled to khas possession of the lands in dispute but he is only entitled to recover rent payable on account of this land. Besides, as the mortgage is only with regard to a portion of the land, the plaintiff is not entitled to any claim as against the mortgagees for possession of the lands. Nor is he bound to redeem the mortgage.
4. The appeal is, therefore, dismissed with costs.
Cuming, J.
5. I agree.
