1. This is plaintiff's appeal in a suit for ejectment originally filed in the Court of an Assistant Collector. The plaintiff is admittedly the zemindar of the land in suit. In his plaint, he describes the two defendants, Chedu son of Dan and Chiddu son of Matru, Kunjras, as non-occupancy tenants of the land in suit. The defendants filed a written statement in which they described themselves as mortgagees in possession on behalf of the tenant-in-chief who was a tenant with occupancy rights. On their plea Mithu son of Faqira was added as a defendant. The Assistant Collector came to the conclusion that there had been a mortgage by Faqira father of Mithu in favour of the original defendants and that this fact alone was sufficient to oust his jurisdiction. He dismissed the suit according. The District Judge was obviously inclined to the opinion that the Assistant Collector was wrong on the question of jurisdiction. He has, however, rightly remarked that the question was one which might be passed over in his Court, in virtue of the provisions of Section 197 of the Agra Tenancy Act (Local Act II of 1901). He was of opinion that he had materials on the record sufficient to determine the appeal. He has found that there was a mortgage by Faqira in favour of the original defendants, and that this fact alone was sufficient to protect the said defendants from ejectment during the period of the mortgage. The plaintiff's suit having thus been dismissed by both the Courts below, it is contended in second appeal to this Court that the findings of the Court of first appeal are not sufficient to dispose of the case. The facts apparent from the record are somewhat peculiar. It would seem that the land was conveyed to the fathers of the two original defendants by two distinct transactions. There was a mortgage by Faqira in the month of May 1897 in favour of Matru for a period of 15 years. Before this period had expired, Faqira executed another mortgage in favour of Dan for a period of 20 years. The record does not show that Dan and Matru are related, though they are members of the same caste, and it would seem that their sons, the two defendants originally impleaded, are amicably in joint possession of the land in suit. After the death of Faqira, there was a suit for arrears of rent against Mithu which resulted in a decree in favour of the zemindar. If the latter had proceeded to eject Mithu for non-satisfaction of this decree, the mortgagees in possession would no doubt have had an opportunity of protecting themselves by paying into Court the amount of the decree money. It is not clear from the record whether any proceedings in ejectment had been commenced, but on the 29th of January 1911, Mithu relinquished his holding in favour of the plaintiff zemindar. Subsequently, Mithu himself brought a suit to get this relinquishment set aside, on the ground that it had been brought about by fraud or coercion and this suit failed. The learned District Judge has quoted authority for the position taken up by him, that Mithu was not entitled during the pendency of the mortgage in favour of Dan to relinquish his holding to the prejudice of the latter. It seems to me that there are two currents of opinion in this Court on this question. The matter came before a Full Bench recently in the case of Birj Kumar Lal v. Sheo Kumar Misra 29 Ind. Cas. 215 : 37 A. 444 : 13 A.L.J. 649. In deciding that case, the Court laid stress on certain facts which had been concluded by the findings of the Court below. These were as follows: (1) that the mortgage set up against the zemindar was for consideration and genuine; (2) that the object of the relinquishment was to defeat the mortgagee's rights. On these findings it was held that the Civil Court had rightly granted the mortgagee a declaration that the relinquishment by the tenant was ineffectual against him and an injunction restraining the zemindar from interfering with his possession. A number of authorities on the point are referred to by Tudball, J., in his order in the case of Jai Gopal Narain Singh v. Uma Dat 10 Ind. Cas. 573 : 8 A.L.J. 695. It is clear that in some of the older cases of this Court, as for instance, Rannu Rai v. Rafi-ud din 27 A. 82 : A.W.N. (1904) 170 the position had been broadly taken up that an occupancy tenant who, prior to the coming into force. of the Agra Tenancy Act (Local Act II of 1901), had made a usufructuary mortgage of his holding and put the mortgagee into possession, could not during the subsistence of this mortgage relinquish his holding to the prejudice of the mortgagee's rights. If the principle thus broadly laid down, is accepted as of universal application, it would seem that there was no necessity in the more recent ruling to which I have referred, to discuss such a question as the object of the relinquishment, or the existence of collusion between the mortgagor, and the zemindar. I take it that the law is finally settled to this extent, that an occupancy tenant who has mortgaged his holding under the circumstances stated and put the mortgagee in possession, cannot enter into a bargain with his zemindar so as to secure some collateral advantage for himself as consideration for the relinquishment of his holding, to the prejudice of the mortgagee whom he has himself put in possession. Whether any broader principle than this can be laid down as applicable to all cases, seems to me at least open to argument. The mortgagees, by refusing or neglecting to pay rent regularly to the zemindar, might obviously put their mortgagor in a very unpleasant position. It is all very well to say, as has been done in this case, that the mortgagee would be driven in the last extremity to protect the occupancy tenant from ejectment by paying into Court the amount of any decree which the zemindar might have obtained against him, but there seems no good reason why the occupancy tenant, while not in possession and not enjoying any benefit from the produce of the land, should be put to the trouble of defending a series of suits for arrears of rent because the mortgagee in possession has not troubled himself to pay the rent regularly. If the conditions of the mortgage were such as to bind the mortgagee to pay rent regularly to the zemindar, I think the Courts might well grant the mortgagor equitable relief against any breach of such condition and permit him to protect himself from further trouble by relinquishing his holding. Without, therefore, committing myself to any further attempt to define the law on this point, I think I have said enough to justify the conclusion that there should be some further findings of fact recorded, before the decision of the Courts below dismissing the plaintiff's suit, can be affirmed. I have to consider what issues should be remitted. In argument before me it has been suggested that the mortgages in favour of Dan and Matru have not been proved in accordance with law, and that there should be a finding both as to the factum of those mortgages and as to the passing of consideration. It does not seem to me that any plea to this effect can fairly be read into the memorandum of appeal filed by the plaintiff in this Court; nor do I think it is a plea which I should permit to be raised at this stage. The whole of the proceedings in the Courts below, and the findings of both those Courts, are based on the assumption that the defendants originally impleaded were placed in possession by E'aqira, as mortgagees in virtue of a bona fide mortgage or mortgages. As a matter of fact, the period of the mortgage in favour of Matru has expired, so that the only mortgage which can be set up in this case is that of 1901 in favour of Dan. As the case now stands before me, I do not think it necessary or advisable to call for any finding as to whether this mortgage was legally proved or was for consideration. I think the Courts below have virtually concluded these points in favour of the defendants.
2. There remains the question of the transactions connected with Mithu's relinquishment. I remit the following issues to the Courts below:
(1)In relinquishing his rights as an occupancy tenant over the land in suit, did Mithu obtain for himself any collateral advantage from the plaintiff zemindar, or can it otherwise be said that the plaintiff and Mithu were acting in collusion to the prejudice of the original defendants?
(2) Were the original defendants, or either of them, as mortgagees of the land in suit, bound to pay the rent thereof regularly to the zemindar? Were they in any way responsible for the fact that the zemindar obtained a decree for arrears of rent against Mithu?
3. As the case has not been looked at in either of the Courts below from the point of view which I have taken, I think that the parties should be permitted to adduce evidence on these issues if they see fit to do so. The lower Appellate Court may record itself any additional evidence which the parties may offer, or cause the evidence to be taken by the Court of first instance but it must record its own findings. On return of the findings, 10 days will be allowed for objections.