Walsh, Acting C.J.
1. We find ourselves unable to agree with the view taken by the learned Judge of this Court who heard this appeal. I desire merely to say this. The whole of his judgment is based upon the legal hypothesis that the mortgagee, the plaintiff, is a dispossessed mortgagee. The facts to which this expression is applied are that the mortgagee, having been unable or unwilling--it really does not matter which to--obtain possession by occupation, himself leased the mortgaged property to the mortgagor for a term of seven years and during those seven years remained in 'possession by the receipt of the rents. Since those seven years expired the mortgagor has continued to remain in possession. The mortgagee has taken no active steps to turn him out. The ordinary presumption is that the mortgagor has remained in possession with the mortgagee's consent without an express agreement. All I can say, is I find myself entirely unable to accept the description of dispossessed mortgagee applied to a mortgagee who is in the josition which I have just described. He has not been dispossessed in any shape or form. The possession of the mortgagor under the lease was certainly lawful and with the consent of the mortgagee. It has continued and nothing appears to the contrary. If it were put as a finding of fact I should hold that there was no evidence on which anybody could find that the mortgagee had been dispossessed. The whole of the judgment appears to me be to based upon this fallacy and it is sufficient for my purpose, though there are other reasons for disagreeing with it, to compel us to allow the appeal and restore the decree of the lower Appellate Court with the usual consequences, that is to say, the defendant must pay the costs of this appeal and of the appeal to the learned Judge of this Court and the decree of the lower Appellate Court will be restored.
2. I agree for the reasons given and also because of the provisions of Section 201 (3) of the Tenancy Act. The usu-fructuary mortgage of a co-sharer in possession of the share is entitled to maintain a suit against the lambardar for profits. The plaintiffs in this case are recorded in the village papers as being mortgagees in possession of a certain share. The defendant is the lambardar of the mahal to which that share appertains. The fact that he happens also to be the mortgagor of the plaintiffs does not in my opinion in any way affect the maintainability of the present suit. The Court was bound to presume that the plaintiffs had the right. recorded in their favour in the village papers on the strength of which they instituted the present suit, namely, the right to recover from the lambardar the rateable share due on account of profits of a share of 3 annas 1 pie of which they stood recorded as the mortgagees in possession. In the case quoted to the learned Judge of this Court and relied upon by him, a case which has never for obvious reasons found its way into the regular Law Reports, we find on going further into the matter that the question of the unrebuttable presumption raised by Section 201(3) aforesaid was not only not raised before this Court but was expressly excluded from consideration when the matter was carried further by an appeal under the Letters Patent. I may add also in connection with what has been said by the learned Acting Chief Justice that it being well settled law that mere non-payment by a lambardar to any co-sharer of the said co-sharer's proper quota of the annual divisible profits of the mahal, does not in the absence of evidence to the contrary, constitute an ouster of the said co-sharer from possession. I do not see why a different principle should be applied to the case of a usufructuary mortgagee who happens to have taken his mortgage from the particular co-sharer who is filling at the time the office of the lambardar, I agree with the order proposed.
3. The order of the Court is that the appeal is allowed and the decree of f the lower Appellate Court restored. The defendant must pay the costs of this appeal and of the appeal to the Judge of this Court.