1. The essential facts out of which these two appeals arise are as follows: One Mahadeo, an occupancy tenant, executed on the 7th of July 1914 three mortgage-deeds, one in favour of Sarup and Manrup and the other two in favour of Ram Jas and Ram Phul. The deeds in question purported to give the aforesaid mortgagees possession of plots of land forming part of Mahadeo's occupancy holding. One plot was given in the first mentioned mortgage and six more plots were added in the other two. After executing these documents Mahadeo refused to get them registered and eventually the mortgagees were driven to institute a regular suit in order to obtain registration. When this suit was instituted Mahadeo declined to contest it and it was decreed against him on his own confession, so that registration was at last effected in the month of July 1915, almost one year after execution. We must take it, however, on the findings of the Courts below that possession had at once been given to the mortgagees of the plots specified in their mortgages. In the meantime, however, that is to say, on the 10th of August 1914 before the suit by the mortgagees had been instituted and while the question of registration was still pending before the District Registrar, Mahadeo executed another deed by which he purported to lease 20 plots of land, including the six plots specified in the mortgages in favour of Ram Jas and Ram Phul but not including plot No. 859 specified in the mortgage in favour of Sarup and Manrup, to the plaintiff Habib Ullah at an yearly rent. Habib Ullah failed to obtain possession and thereupon brought the present suit impleading as defendants the four mortgagees, the tenant Mahadeo and one Debi Din with whose position we are not now concerned. It would seem that in the Courts below it was not noticed that the plaintiff's claim did not include plot No. 859 or that the mortgages in favour of Ram Jas and Ram Phul only affected six out of the 20 plots specified in the' plaint. The case was contested as if the areas affected by the mortgages and by the lease were identical. The Court of first instance held that the mortgages being mortgages of an occupancy holding were contrary to the express provisions of the Tenancy Act and conferred no title on the mortgagees. The lease in favour of the plaintiff Habib Ullah, on the other hand, was a valid contract of lease for a period of five years, permissible under the provisions of the Act. The learned Munsif, therefore, held that the plaintiff had a good title to possession over the land in suit as against all the defendants, subject only to the framing of the decree in such a form as to safeguard the rights of the additional defendant Debi Din. With this qualification the Court of first instance overruled all the objections taken by the mortgagees and decreed the plaintiff's claim. There was an additional claim for damages based upon allegations of fact which the learned Munsif found not to be substantiated by the plaintiff's evidence and this part of the claim was, therefore, dismissed. There were two appeals to the District Judge, one by the plaintiff against the order dismissing his claim for damages and the other by the mortgagee defendants against the decree awarding possession to the plaintiff. The learned District Judge, referring to the decision of a Bench of this Court in Bahoran Upadhya v. Uttamgir 12 Ind. Cas. 112 : 8 A.L.J. 931 : 33 A. 779, has held that the plaintiff is not entitled to recover possession without refunding the mortgage-money and he has accordingly dismissed the plaintiff's claim altogether. On this view of the case the appeal filed in the Court below by the mortgagees was allowed and the cross-appeal of the plaintiff was dismissed. Hence there are two appeals now before us both brought by the plaintiff against the two decrees passed by the lower Appellate Court. The learned Judge of this Court before whom the matter first came found it necessary to remit certain issues for determination by the Court below and afterwards referred the appeal to a Bench of two Judges for consideration of the question of law involved.
2. In our opinion the facts of this case are not covered by the ruling upon which the learned District Judge has relied. The plaintiff accepted his lease after the execution of the three mortgages in question but before their registration, and it is certainly not proved by any evidence on the record that he had notice of the existence of these mortgages, much less that he was acting fraudulently or in collusion with the occupancy tenant in order to defeat the rights of the mortgagees. Something has been made in argument of the fact that the plaintiff's father witnessed the execution of one of the mortgage-deeds but after considering the evidence given by this man, Feqirey, in the trial Court, we are satisfied that it is not proved that Faqirey knew that the land comprised in the mortgage-deed which he witnessed was also included in the lease afterwards taken by his son Habib Ullah. Under these circumstances it seems to us that Habib Ullah is as much entitled to maintain the present suit for recovery of possession as lessee under the terms of the contract in his favour as he would have been to maintain a suit against a rival lessee, that is to say, against a person to whom Mahadeo had also granted a lease of a portion of the same land in respect of which it could be contended that it was not binding on Habib Ullah, either because it was subsequent in date or because it was for some other reason invalid in law. The equitable principle upon which the case of Bahoran Upadhya v. Uttamgir 12 Ind. Cas. 112 : 8 A.L.J. 931 : 33 A. 779 was decided does not seem to us to affect a bona fide transferee from the occupancy tenant. If the mortgagees have any remedy it is as against Mahadeo.
3. The appeals before us challenge the decision of the Court of first instance on the question of damages. This matter has not been adequately gone into on the facts by the lower Appellate Court, but we are content to say that no sufficient cause has been shown to us for dissenting from the finding on the strength of which this part of the plaintiff's claim was dismissed by the Court of first instance. The arguments before us have proceeded on the assumption that the plaintiff has not hitherto succeeded in obtaining possession under his lease and that his allegations to the contrary in his plaint were not well-founded. On this basis the claim for damages as brought must be dismissed, but otherwise we are of opinion that the decrees of the lower Appellate Court must be set aside and the decree of the Court of first instance restored. The respondents will pay the costs in this and in the lower Appellate Court.