Wort, J.This is the plaintiffs appeal in an action for redemption. The plaintiff purchased the property in dispute from the original occupancy tenant. The vendor of the plaintiff had previously mortgaged the property to one of the cosharer landlords who is the respondent before this Court. That mortgage transaction took place more than 25 years ago. Just prior to the action out of which this appeal arises the plaintiff paid the mortgage money into Court, and by his action he claimed possession subject to redemption. The trial Court gave judgment for the plaintiff. On appeal however to the Special Subordinate Judge the, decision was reversed on a point which the learned advocate representing the respondent in this Court fairly admits he cannot support. The decision was based on a complete misapprehension of the law. In substance it is this. The learned Judge states that

2. The plaintiff is mot with another difficulty and that is that he is a cosharer landlord of the village, and u/s 20, Chota Nagpur Tenancy Act, he had no right to hold the disputed land as a tenant, but could hold it as a proprietor. It may be noted that the provisions of this Act are now analogous to the provisions of the Bengal Tenancy Act and so on.

3. Then proceeding to, refer to the well-known Midnapore Zamindary Companys case he said that the purchase would be held to be a purchase for the benefit of all the cosharer landlords. I need Say no more than to observe, that the learned Judge in the Court below appears to think that in the purchase by the landlord of a holding a merger ensued. That, is a complete: misapprehension of law No merger did in fact take place and the learned advocate for the respondent does not support the judgment on that point but argues another question which at any rate to some extent was dealt, with by the Court below. His contention was in the first place that the mortgage was for more than five years, and that by the provisions of the Chota Nagpur Tenancy Act a mortgage for more than five years is invalid. There was no mortgage for the plaintiff to redeem, and as it was an action for redemption and not in substance an action for possession, the action must in any event fail. It would be some what astounding to me if I had to come to the conclusion that the law of this country is such as to prevent a plaintiff, in the circumstances such as the present, from succeeding where in fact he has claimed possession subject to redemption, merely on the ground that it was in substance an action for redemption, I need only refer in this connexion to the decision in Annada Hait v. Khudiram Halt 1914 Cal 894. That is a decision of the Calcutta High Court and Harington, J. in delivering the judgment of the Court--a judgment which was affirmed by the Divisional Court--made this statement in, answer to the argument addressed to him:

It appears to me that a suit for possession on redeeming a usufructuary mortgage is in sub-Stance a suit for possession of the, land.

4. If the plaintiff establishes his title and the only answer the defendant has is that the mortgage is void in point of law, still nevertheless the plaintiff would be entitled to get the land. The defendant respondent therefore in this case is on the horns of a dilemma, and if he contends and successfully contends that the mortgage was invalid and that no Court could take cognizance of it, the plaintiff would be entitled, subject to questions of limitation, to succeed in his action without the payment of mortgage money. But it is contended in this case that the action for possession cannot succeed for the reason that it was brought beyond the period of 12, years and was therefore barred by limitation. Mr. Sinha who appears on behalf of the plaintiff-appellant contends however that the mortgage is valid. The section of the Chota Nagpur Tenancy Act relied upon by the respondent is Section 46 which provides:

No transfer by a raiyat of his right in his holding or any portion thereof by mortgage or lease for any period, expressed or implied which exceeds or might in any possible event exceed five years ... shall be valid to any extent.

5. Now two points arise: first, that the mortgage is an invalid transfer and it is invalid not only by reason of Section 46, but by reason of the fact that under the Transfer of Property Act and the Registration Act, although this mortgage was for a sum less than Rs. 100, as there was a deed, it was necessary to register that deed, and non-registration makes the transaction invalid. In my judgment that argument is based upon a fallacy. There is nothing in the Chota Nagpur Tenancy Act which provides that a transaction of this kind is illegal. In the first place there is no doubt that the transaction was a mortgage transaction: in other words the mortgagee went into possession as a usufructuary mortgagee. The fallacy which underlies the argument is this that in some way (that way being unexplained) the fact that the transaction itself is invalid made the position of the mortgagee adverse. There is no foundation in my judgment for that contention. Whether the transaction was invalid or not, whether the landlord was bound to recognize it or not, the position of the mortgagee was that of a mortgagee and nothing more. There is no suggestion in this case, nor indeed was there any evidence, of any adverse possession by the mortgagee. It is a well-established principle enunciated in numerous cases, and indeed enunciated in every case that ever dealt with the particular aspect of this matter, that the mortgagees possession remains that of a mortgagee until some adverse title is set up by him. There is nothing of that kind in this case and in my judgment this point entirely fails.

6. When once it is held that the position of the defendant was that of a mortgagee, it is quite clear that the right to redeem is not extinguished until a period of 60 years lapses under Article 148, Lim. Act. For these considerations which I have stated it seems to me the point which the respondent contends in this, case fails. It Would be rather shocking if this Court were bound to hold otherwise particularly in the circumstances of this case, for it must be remembered that it is not the landlord qua landlord who is setting up this contention, but the very person who the Act enjoins to have his own transaction of mortgage carried out in a particular manner. And I say it will be in my judgment shocking to have to come to a contrary conclusion in a case of this kind where all the justice of the case is on the side of the plaintiff who comes into Court offering to redeem the mortgage. The Courts below, so far as this point is concerned, have held against the respondent and in my judgment their decision on this point is right; and, as no support can be given on the decision of the Court below holding that the plaintiff should fail, the net result is that the appeal must be allowed and there will be order for costs throughout. Leave to appeal under the Letters Patent is refused.