1. The Assistant Judge has held the mortgagee in possession in this case not responsible for the land revenue of the fields held by him under the mortgage. The plaintiff, as Kabulayatdar Khot, is recognized by the Assistant Judge as entitled to demand from Dharekaris the amount of assessment on their dhara; but Lakshmibai, the mortgagor, being owner of the dhara in question, and, therefore, occupant according to the Bombay Survey Act I of 1865, the Assistant Judge has held that she, and she alone, is responsible for the assessment. That she is responsible for it, is true; but it does not follow that she is solely responsible, and Regulation XVII of 1827, Section 5, enables the Government, and, therefore, the holder of the rights of Government, on failure of the superior holder to pay the revenue, to realize it from the inferior holder, a position which, in the sense of the Regulation, is held in this case by the mortgagee.
2. It is obvious that, if the occupant only could be made answerable for the rent or revenue due to the Government, it would only be necessary to effect a mortgage in order to defraud the state of its dues. This would be entirely opposed to the purposes of the laws for realizing the land revenue; and, in order to obviate any such result, these laws establish a kind of privity of estate between the superior and inferior holder, by which the latter, taking the profits of the land, must satisfy the obligations of the former to Government independently of, and even in opposition to, any agreement between the two contracting parties. The liability adheres to the occupation and enjoyment, and cannot be got rid of, except through its resignation by the sovereign or the sovereign's representatives.
3. We must, therefore, reverse the Assistant Judge's decree, and restore that of the Subordinate Judge with costs throughout on the respondent.