1. This appeal arises out of a suit for the redemption of a usufructuary mortgage of one plot (No. 128) of his occupancy tenancy executed in 1880 by one Bakhauri.
2. It is admitted that Bakhauri's occupancy holding consisted of 6 plots and that he died about 25 years ago. It is further admitted that the appellants are in possession of the five other plots of the holding, but that the plots in suit are held by the defendants as mortgagees.
3. The appellants' ease is that they are the heirs of Bakhauri and as such entitled to redeem this mortgage. The main defence raised was that the appellants were not the heirs of Bakhauri; the first Court found in the plaintiffs' favour, but the lower appellate Court dismissed their suit finding that though they were the collaterals of Bakhauri, they were not his heirs within the meaning of Section 22 of the Tenancy Act as they were not proved to have been joint with him in the cultivation of the holding at the time of his death.
4. It has been contended in appeal that this finding is wrong.
5. It is, however, clearly a finding of fact which cannot be disturbed now. The learned pleader for the appellant, however, has a second line of attack. This is that under Section 91 of the Transfer of Property Act the appellants are entitled to redeem the mortgage as they have an interest in the property. It appears that all the six plots are still recorded as one holding. It further appears that it has been the practice of the zamindar, when giving receipts for rent to the defendants to describe the rent as paid by the present plaintiffs through the defendants, as mortgagees.
6. It is argued that the appellants are liable for the rent of the entire holding including the plot in suit, and that this liability confers on them the interest which is required by Section 91 of the Transfer of Property Act.
7. As already mentioned it has been found that the plaintiffs did not acquire possession of the other five plots of the holding as heirs of Bakhauri under the Tenancy Act. They are certainly now recognised as occupancy tenants by the zamindar. What the result of this recognition might be in the event of the defendants refusing or failing to pay their rent, and whether such a failure would render the appellants liable to ejectment, are questions which can hardly be determined now. The fact that the zamindar has recognised the appellants occupancy rights is no doubt conclusive so far as he and they are concerned but it cannot be said that this recognition is sufficient to give them a right to redeem the mortgage held by a third party in the absence of evidence that they acquired these rights as heirs of the mortgagor, and indeed in the face of a positive finding to the contrary. In these circumstances the appeal must fail and is dismissed with costs including in this Court fees on the higher scale.