1. The plaintiffs in this case are talukdars and they are suing for khas possession of land formerly leased to defendants Nos. 17 to 20. The land was originally leased to these men in 1301 for 9 years. The defendants Nos. 1 to 5 who are the appellants now before us are under-lessees of these raiyats. In 1306 a rent decree was passed against the raiyats and the property was put up to sale. On this the present appellants paid the amount of the decree and thereupon became mortgagees by the operation of law under Section 171 of the Bengal Tenancy Act Subsequently in 1311 the raiyats surrendered their holding to the plaintiffs, and the plaintiffs accordingly brought the present suit in order to recover khas possession of the land against the present appellants. The position occupied by the appellants is pretty clear. They had the first charge on the land under Section 171(b) of the Bengal Tenancy Act in respect of the money which they had paid. It is argued that under these circumstances the surrender to the landlord was not valid because it was made without their consent. This argument is founded on Section 86(6) of the Bengal Tenancy Act. We cannot, however, hold that it has any force. The operation of that sub-section is confined to a case where the holding is subject to an incumbrance secured by a registered instrument, which is not this case. It is perfectly true that the plaintiffs' claim under Section 171 is the first charge on the land, but this does not put him info the same position as that of a man holding by a registered instruments. The reason for the provisions in Section 86(6) is plainly to prevent collusive incumbrance and subsequent surrender. This mischief is one not to be apprehended where the charge is one under Section 171.
2. The learned Subordinate Judge in the Court below has remanded this case under Section 562, C.P.C., in order that the first Court may determine the amount still due to the present appellants on their mortgage by operation of law. In doing this he has made a mistake because he should have sent down an issue of fact to be tried by the Munsif, namely, to determine the amount still due to defendants Nos. 1 to 5 in order that the khas possession claimed by the plaintiffs should be postponed until that amount is paid to the defendants.
3. The Subordinate Judge's order of remand should be altered accordingly, otherwise his judgment is perfectly correct, and this appeal is, therefore, dismissed with costs.
4. We assess the hearing fee at two gold mohurs.