1. This is a second appeal from a decision of the learned District Judge of Jhansi, reversing the decision of the trial Court which had given the plaintiff mortgagor a decree for possession of an occupancy holding on payment of a sum of Rs. 219. The parties to the suit had executed a deed which purported to be a mortgage by conditional sale of an occupancy holding in 1897, that the present suit was framed as one to redeem the mortgage. The mortgage was clearly an invalid one and both the Courts below have held it to he so. The only question raised in second appeal is whether the plaintiff mortgagor is entitled to recover possession.
2. The lower appellate Court has held that in case of an illegal mortgage the transaction should not be recognized in any way by the Courts. The trial Court relied on the decision in the case of Ramzan v. Bhukhal Rai  16 A.L.J. 747, in which the facts appear to have been precisely similar to those in the present case and it was decided that the mortgagor could regain possession on payment of the amount advanced to him on the illegal mortgage. The learned Judge has referred to a later decision by a single Judge of this Court in the case of Daya Ram v. Thakuri A.I.R. 1924 All. 668. The facts of that case, however, can clearly be differentiated as the Judge has recognized, for the mortgagee had been dispossessed by a third party and sued his mortgagor for recovery of the mortgage money. The mortgage itself being illegal the Court refused to enforce the illegal contract. In the present case there is no question of enforcing an illegal contract. The contract being illegal must be ignored, but the plaintiff as the owner of the occupancy right may recover possession at will.
3. The learned Judge went on, however, to point out that the mortgagee had been in undisturbed possession for about 25 years, and held therefore that the plaintiff's claim to recover possession was barred by limitation. No doubt that would be the case, if the mortgagee's possession had been that of a trespasser but it was permissive and no question of adverse possession arose. In the case of Durga Chowdhuri v. Jagroop A. I, Rule 1923 All. 191, it was held that where the defendant was in possession under colour of an invalid mortgage-deed, his possession was with the permission of the mortgagor and was not adverse and no reason has been shown me why this decision should not be followed.
4. This appeal is, therefore, allowed with costs in all Courts, the orders and decree of the lower appellate Court is set aside and those of the first Court restored.