N.D. Ojha, J.
1. During proceedings under the U. P. Consolidation of Holdings Act an objection was filed by the appellants claiming to be sirdars of the land in dispute.In the basic year the name of respondent No. 1 stood recorded as tenure holder; whereas the appellants were recorded as Qabiz as mortgagees in the remarks column. The objection of the appellants was allowed by the Consolidation Officer, but on appeal by respondent No. 1 it was held that the appellants were only asamis of the land in dispute. The Deputy Director of Consolidation on a revision filed by the appellants held them to be sirdars. Respondent No. 1 filed a writ petition in this Court which was allowed by a learned Single Judge by the judgment under appeal, whereby the order of the Deputy Director of Consolidation was quashed and he was directed to decide the revision afresh.
2. In order to appreciate the respective contentions made by the learned counsel for the parties it would be necessary to have a few facts. The land in dispute was occupancy tenancy of the predecessors-in-in-terest of respondent No. 1 and was mortgaged in 1882 in favour of the predecessors-in-in-terest of the appellants. A suit was filed for redemption in the year 1928 and a preliminary decree was passed on 21-6-1928 for redemption of the mortgage on payment of Rs. 1320/3/3 within six months from the date of the decree. It, however, appears that thereafter neither the mortgagors paid the amount aforesaid nor was a final decree got prepared. The mortgagees, therefore, continued in possession notwithstanding the preliminary decree aforesaid. Counsel for the appellants urged that the mortgage being of occupancy tenancy was in the nature of a licence as held in Mahabal Singh v. Ramraj : AIR1950All604 and the effect of the institution of the suit for redemption in the year 1928 was that the licence stood revoked and since thereafter the possession of the appellants ceased to be permissive and became adverse. It was urged that since no suit for possession was filed thereafter within limitation the appellants had acquired sirdari rights and the order of the Deputy Director of Consolidation was correct in law. Learned counsel placed reliance on certain decisions wherein it was held that a licence could be revoked by the institution of a suit for possession. Those cases need not be discussed in detail because it is well settled that a bare licence stands revoked on the wish of the licenser which can be expressed even by instituting a suit for possession. The question which falls for consideration in the instant case, however, is whether a mortgage of an occupancy tenancy stands on the same footing as a bare licence. A licence, unlike a contract, creates no mutual obligations and rights between the parties and it can be revoked on the sweet will of the licenser. A licence coupled with creation of interest in land stands on a different footing. When a mortgage is created of occupancy tenancy, a relationship comes into being whereby mutual obligations and rights are created. The mortgagor is under an obligation to pay the mortgage consideration and. has the right to recover possession on payment of the mortgage consideration as held in Mahabal Singh's case : AIR1950All604 (supra). Likewise the mortgagee has the right to remain in possession over the land until the mortgage consideration is paid to him, and he is under an obligation to return possession on payment of the mortgage consideration. The rights and obligations of the mortgagor and the mortgagee of an occupancy tenancy are so conditioned that performance of one is conditional on performance of the other. In Jai Narain v. Kedar Nath : 1SCR62 , the following observations were made in regard to a conditional decree:--
'When a decree imposess obligations on both sides, which are so conditioned that performance by one is conditional on performance by the other, execution will not be ordered unless the party seeking execution not only offers to perform his side, but when objection is raised, satisfied the executing Court that he is in a position to do so. Any other rule would have the effect of varying the conditions of the decree.'
The principle laid down in the case aforesaid can be applied to a mortgage of an occupancy tenancy. Since in the instant case, admittedly the mortgagor did not pay the mortgage consideration which he was directed to do by the preliminary decree passed in 1928, he did not discharge the obligation on his part and, consequently, the mortgagee was entitled to remain in possession over the land mortgaged to him till the mortgage consideration was paid to him. In this context we are of the opinion that possession of the mortgagee did not get converted into that of a trespasser, merely by the institution of the suit for redemption in the year 1928 he continued to be a mortgagee of an occupancy tenancy. As held in Mahabal Singh's case : AIR1950All604 (supra) the limitation prescribed for filing a suit for redemption did not apply to a mortgage of occupancy tenancy and the mortgagee of such tenancy was bound to restore possession on the mortgage consideration being paid to him irrespective of any period of limitation. In view of Samharu v. Dharamraj Pandey : AIR1970All350 such a mortgagee would acquire asami rights under Section 21 (1) (d) of the U. P. Zamindari Abolition and Land Reforms Act. The Deputy Director of Consolidation committed a manifest error of law in taking a contrary view and his order was rightly quashed by the learned Single Judge.
3. In the result, the appeal fails and is dismissed with costs.