1. We think this appeal ought to succeed. The plaintiff brought a suit for a declaration that the sale of the tenure at the instance of the landlord in execution of a decree for arrears of rent was brought about by fraud. The defendant No. 6 purchased the holding at that sale. The plaintiff alleged that such a sale had affected prejudicially his right as a usufructuary mortgagee under a mortgage executed by the tenants in his favour in the year 1324, by virtue of which he had been in possession of the land in suit. The plaintiff, therefore, prayed for an order directing the sale to be set aside and also for a declaration to the effect that the sale was vitiated by fraud and, therefore, was of no effect so far as he was concerned.
2. The defence of the defendants, amongst others, raised the question that the plaintiff was not entitled to any relief on the ground that he had no interest in the holding as against the landlord.
3. The Court of first instance found that the sale was brought about by fraud and that the plaintiff although he was not entitled to have the sale set aside, was entitled to a declaration that the sale was, so far as the plaintiff was concerned, in effectual.
4. Against that decree the defendant No. 6 who contested the suit, preferred an appeal to the District Judge. The learned District Judge without going into all the questions which arose in the appeal, allowed the appeal and dismissed the plaintiff's suit on the ground that the plaintiff had not established that he was 'entitled to any legal character or to any right as to any property'. This view was based upon the authority of two cases, viz., Krishna Chandra Dutta v. Khiran Bajania, 10 C.W.N. 499 : 3 C.L.J. 222 and Rasik Lal Dutt v. Bidhu Mukhi Dasi 10 C.W.N. 719 : 4 C.L.J. 306 : 33 C. 1094. The learned Judge was of opinion that those cases were authorities for the proposition that a usufructuary mortgagee has no right to possession of the property as a mortgagee by a raiyat against his landlord. In this view the learned Judge held that the plaintiff could not ask for a declaratory decree.
5. In this appeal it has been contended by the learned Advocate who has appeared for the plaintiff-appellant, that the view of the District Judge is wrong, because, the decisions in the two cases relied upon by the learned Judge were questioned and disapproved of in the case of Ambika Debi v. Swarnamoyi Dasi 68 Ind. Cas. 425 : 49 C. 989 : (1922) A.I.R. (C.) 135. It appears to us that this contention is correct. It was pointed out in the case to which I have just referred that the decisions in the cases reported in 10 Calcutta Weekly Notes were inconsistent with the ruling laid down in the Full Bench case of Dayamoyi v. Ananda Mohan Roy 27 Ind. Cas. 61 : 42 C. 172 : 18 C.W.N. 971 : 20 C.L.J. 52. It was held that an usufructuary mortgagee was entitled to recover possession from the landlord unless the landlord could establish that after the execution of the usufructuary mortgage, the raiyat had abandoned the land. In the case before us the possession of the usufructuary mortgagee, the plaintiff, was undisturbed at the time when he brought the suit. It was the apprehension of a disturbance by the auction-purchaser which gave rise to the present suit by the plaintiff. The question, therefore, reduces itself to this: Had the plaintiff, the usufructuary mortgagee, from the raiyat, a right to possession of the property even as against the landlord whether the sale took place or not. If he had, as the case reported as Ambika Debi v. Swarnamoyi Dasi 68 Ind. Cas. 425 : 49 C. 989 : (1922) A.I.R. (C.) 135 shows that he had, then it cannot be said that the plaintiff had no legal character or any right to any property. It is, no doubt, open to the defendant the auction-purchaser, or the landlord to show that the raiyat not only had executed the usufructuary mortgage but had abandoned the land and, therefore, the landlord had a right of re-entry and that the usufructuary mortgagee had no right to remain in possession of the land. But that is a matter which we cannot discuss at this stage. We are only concerned with the question--a bare proposition of law--as to whether an usufructuary mortgagee in the absence of anything else is entitled to possession of the mortgaged property as against the landlord. We, therefore, think on the authority of the case of Ambica Debi v. Swarnamoyi Dasi 68 Ind. Cas. 425 : 49 C. 989 : (1922) A.I.R. (C.) 135, he has such a right and, unless the defence succeeds, the plaintiff would be entitled to the relief claimed.
6. The judgment and decree of the lower Appellate Court are, therefore set aside and the case sent back to the learned District Judge for a decision of the other questions which arise in the case. The defendants who were the appellants in the lower Appellate Court will be entitled to raise all the questions which they did raise in their defence; and also the question of abandonment by the tenants. The learned District Judge will determine all the questions raised according to law.
7. Let the record be sent down to the lower Appellate Court.
8. Costs of this appeal and the costs of the Courts below will abide the result.
9. I agree.