1. This is a second appeal by a plaintiff whose suit for possession of a certain plot has been dismissed by both the lower Courts. As the second appeal raised some difficult questions of law it has been referred by a learned single Judge of this Court to a Bench of two Judges. The facts which were set forth in the plaint were as follows. A portion of plot No. 561 was sir land of which the plaintiff himself is the owner and zamindar and the remaining portion of the said plot was in the zamindari of other persons and was held by the plaintiff as tenant. Entries to this effect were made in the settlement of 1883 for Chamru Singh, the grandfather of the plaintiff. Between the years 1883 and 1885 Chamru Singh, grandfather of the plaintiff, got a guava grove planted on the said plot by Ramsaran Khatik, his subtenant, with his consent and permission. Ram Saran and his wife Mb. Sochani made a usufructuary mortgage by a deed of 7th March 1885 for the sum of Rs. 55 to Sheo Ram Lal, father of defendants. The written statement admitted that formerly guava trees stood on the land in question and that the mortgage deed in question had been executed as alleged. It has been proved that the plaintiff's grandfather was a zamindar. The mortgagors died about 25 years before the suit, and as the suit was brought in 1928 this would make the year of their death about 1903. In 1906 the mother of the present plaintiff mortgaged this and other plots to Sheo Sam Lal by a mortgage deed, and that deed recited the previous mortgage of 1885 and provided that the mortgagee would retain possession of plot No. 561 until the plaintiff should redeem the mortgage of 1885.
2. The mortgage of 1906 was redeemed on 26th June 1.922, and the endorsement on the mortgage deed of redemption stated that plot No. 561 was to remain in the possession of the mortgagee until redemption of the mortgage of 1885. The lower appellate Court has dismissed the suit of plaintiff on the ground that the plaintiff is not entitled to redeem the mortgage of 1885, and that that mortgage came to an end with the death of the mortgagors about 1903. Before us'' learned Counsel for the respondent has upheld the decision on three grounds: firstly, that the mortgage of 1880 was illegal, as a transfer by a subtenant was not permitted by Section 9, Act 12 of 1881 (N. W. Tenancy Act); secondly, that the defendant had adverse possession from 1903, if not from 1885; thirdly, that the plaintiff is not a person entitled to redemption as his grandfather was not a party to the mortgage, deed, having merely attested it as a witness. In regard to the alleged illegality of the mortgage of 1885 we note that para. 2 of the plaint sets forth that the land was planted with a guava grove between the years 1883 and 1885, and that the mortgage was made on 7th March 1885. This is a clear allegation that at the time of the mortgage in suit the land was a guava grove. There was no specific denial of this allegation in the written statement, and on the contrary para. 2 of the written statement admitted that formerly guava trees stood on the land in question. There is nothing in Act 12 of 1881 which makes a mortgage of a grove by a tenant illegal, as the prohibitions refer to tenants of agricultural land. Accordingly We consider that the mortgage of 1885 was a legal mortgage.
3. In regard to the argument that the defendants had adverse possession. We consider that it is not shown that the possession of the defendants became in any way adverse with the death of the mortgagors in 1903. In any case the defendants, by accepting the mortgage of 1906, agreed to hold the land as mortgagees of the plaintiff both under that mortgage and under the mortgage of 1885, and again at redemption of the mortgage of 1906 in 1922 the defendants reiterated their position as mortgagees under the mortgage of 1885. Under the circumstances the defendants cannot succeed in any claim for title by adverse possession.
4. We now come to the question of the right of the plaintiff to redeem. We consider that this should be dealt with in two aspects. First of all, we will deal with the case in the general aspect and the rights of the plaintiff as a zamindar and sir owner of a portion of this plot and as tenant-in-chief of the remaining portion. It has been laid down in Tulshi Ram Sahu v. Gur Dayal  38 All. 111, that where there was a usufructuary mortgage of 1870 executed by a fixed rate tenant, who then disappeared and whose death was presumed a suit for redemption after 1901 could be brought by the zamindar for the redemption of that usufructuary mortgage. The principle underlying this ruling was that on the extinction of the fixed rate tenancy the land reverted to the zamindar and did not escheat to the Crown. This is the general feudal principle of English law which records the rights of a succession of overlords in real property, and on the extinction of the rights of an owner the rights revert to his overlord. In the present case therefore on the extinction of the rights of the mortgagors as subtenants their rights reverted to the plaintiff in his capacity of sir owner and zamindar in one part of the plot and in his capacity of occupancy tenant in the other part of the plot. We might refer to Section 91, T.P. Act, which lays down that besides the mortgagor any person who has any interest in the property mortgaged may redeem. Now the plaintiff in the capacities mentioned has an interest in the property in question. Accordingly we consider that the plaintiff is entitled to redeem.
5. We also consider that it is not open to the defendants to contest the right of the plaintiff to redeem, because in 1906 and 1922 the defendants admitted in the documents in question the right of the plaintiff to redemption, and the defendants agreed to continue as the mortgagees of the plaintiff. It is not open therefore to the defendants having accepted. the position of a mortgagee of the plaintiff to set up a defence that the plaintiff is not entitled to redeem the mortgage in question. We allow this appeal with costs throughout including counsel's fees in this Court on the higher scale, and we grant the plaintiff a decree for redemption of the usufructuary mortgage on payment of the mortgage money, Rs. 94-9-8, within a period of six months from the date of this decree. A decree for redemption under Order 34, Rule 2, Civil P.C. will be framed.