1. The suit, out of which this appeal has arisen, was brought by the plaintiffs-appellants for a declaration of their right to certain property and a further declaration that a sale-deed executed by Madhogir, defendant, in favour of Dhunni defendant, is ineffectual and void as against the plaintiffs. The allegation of the plaintiffs is that #he property belonged to one Sheo Shunkar. The first plaintiff Musammat Akashi is his mother and the second plaintiff Ramphalgir is his brother. Sheo Shunkar died on the 6th of May 1906, and the sale in question was executed on the 19bh of May of the same year. The plaintiffs allege that upon the death of Sheo Shunkar they inherited the property, and that Madhogir had no right to sell it. It is admitted that the property was mortgaged to one Ram Ghulam under a mortgage deed executed by Musammat Akashi as the mother and guardian of Sheo Shunkar and that Ram Ghulam is in possession by virtue of that mortgage. The defendants denied that the property belonged to Sheo Shunkar and asserted that Madhogir was the owner of it.
2. The Court of first instance found in favour of the plaintiffs and decreed their claim. The lower appellate Court, whilst finding that the property belonged to Sheo Shunkar and was his self-acquired property and that his heir is his mother, the first plaintiff, dismissed the suit on the ground that it was barred by the provisions of Section 42 of the Specific Relief Act.
3. The learned Judge was of opinion that the possession of Ram Ghulam, the mortgagee from Sheo Shunkar, was not the possession of the plaintiffs and that, therefore, the plaintiffs being out of possession could not sue for a declaration decree only.
4. This view of the learned Judge is clearly erroneous. The possession of the usufructuary mortgagee Ram Ghulam is the possession of his mortgagor. If the plaintiffs are entitled to the property, they must be deemed to be in possession through their mortgagee Ram Ghulam and it cannot be said that they are out of possession. Section 42 of the Specific Relief Act, is, therefore, no bar to the present suit. In fact in the plaint the plaintiffs stated that as their mortgagee Ram Ghulam was in possession, they could not sue for possession and that they could claim a declaratory decree only and, therefore, advanced such a claim. In this, we think, they were right. As we have pointed out above, the Court of first instance found that the property belonged to Sheo Shunkar. This finding has been confirmed by the learned Judge who also finds that it was Sheo Shunkar's self-acquired property. That being so, his mother, the first plaintiff is his heir and is entitled to the decree which the Court of first instance granted to her. We accordingly allow the appeal, set aside the decree of the Court below and restore that of the Court of first instance with costs in all Courts to be paid to the plaintiffs by the defendants Nos. 1 and 2. The costs in this Court will include fees on the higher scale. An objection has been preferred on behalf of Ram Ghulam in respect of the order of the lower appellate Court charging him with the costs of the defendants Nos. 1 and 2. This objection is, in our opinion, perfectly valid and must be allowed. We accordingly discharge that portion of the lower appellate Court's order which directs Ram Ghulam to pay the costs of the other defendants.