Das, J.In this suit the plaintiffs who are the respondents in this Court claimed to recover possession of 6 bighas more or less of land bearing khata No. 171. The defendants resisted the suit on the ground that they have rights of occupancy in those lands. The Courts below have concurrently found against the defendants and they appeal to this Court.

2. It appears that one Nakched had 23 bighas more or less of brit land in village Madhopur. He gave a usufructuary mortgage of those lands to the defendants on 2nd November 1888. The defendants while in possession of the tenure purchased the disputed lands from the occupancy tenants on 11th January 1897. Nakoheds son Bishun sold the equity of redemption to the plaintiffs by two kabalas one dated 26th November 1918, and the other dated 2nd April 1919.The plaintiffs deposited the zarpeshgi money u/s 83, TP. Act, and the defendants withdrew the mortgage-money and made over possession of what belonged to Nakched to the plaintiffs. They retained possession of the 6 bighas of raiyati lands purchased by them or 11th January 1897- The present suifc was instituted by the plaintiffs for recovery of those lands.

3. The plaintiffs base their claim on Section 63, T.P. Act, which provides that:

Where mortgaged property in possession, of the mortgagee has, during the continuance of the mortgage, received any accession, the mortgagor, upon redemption, shall, in the-absence of a contract to the contrary be entitled as against the mortgagee to such accession.

4. The short question which the Courts below had to try was whether these 6 bighas of land were an accession to the mortgaged property. They found in favour of the plaintiffs, but it is con tended before us that the conclusion of the Courts below on this point is erroneous and reliance is placed on decision of the Judicial Committee in Rajctr Kisliendutt Ram v. Raja Mumtaz Ali, Khan [1880] 5 Cal. 198, and a decision of this Court in Maheshwar Prasad Singh v. Babu Ram AIR 1921 Pat. 59, In the Privy Council case it was laid down that many acquisitions by the mortgagee are treated accessions to the mortgaged property, or substitutions for it, and, therefore, subject to redemption. But their Lordships were careful to point out that it could not be affirmed that every purchase by a mortgagee, must be regarded as an accession to the mortgaged property.

5. In my opinion if it appears that by reason of his position as mortgagee in possession, he has had peculiar facilities for acquiring the properties in question, such properties should be regarded as an acquisition to the mortgaged property. If, on the other hand, it appears that in regard to such acquisitions, the mortgagee in possession is in the same position as any third party, then the properties so acquired should not be regarded as an accretion to the mortgaged property. I think this position is made clear in the passage of the judgment of the Judicial Committee at p. 204. That passage runs as follows:

It may well be that when the estate mortgaged in a zemindari in lower Bengal, out of which a patni tenure has been granted, or one within the ambit of which there is an ancient mortgagee is timrari tenure, a mortgagee of the zemindari, though in possession, might purchase with his own funds and keep alive for his own benefit that patni or mortgagee. In such cases the mortgagee can hardly be said to have derived from his mortgagor any peculiar means or facilities for making the purchase, which would not be possessed by a stranger, and may, therefore, be held entitled, equally with a stranger, to make it for his own benefit. In such oases also the patni, if the patnidar failed to fulfil his obligations, would not be resumable by the zemindar and the zemindari would always have bean held subject to tha mokarrari: on p. 211.

There is another passage which is worth quoting on this point:

It is difficult to see why, as in the case of a renewable lease, the same equity should not attach to the mortgagee, particularly if by reason of his position as mortgagee in possession he has had peculiar facilities for obtaining the surrenders.

6. This was the view which was taken by this Court in Maheshwar Prasad Singh v. Babu Ram AIR 1921 Pat. 59, It was held in that case that the question whether a property acquired by a mortgagee in possession is an accretion to the mortgaged property or not depends upon the intention of the mortgagee which has to be found from a careful appreciation of the entire facts and circumstances of the case.

7. In this case it is contended that a stranger could have acquired the disputed holdings from the occupancy tenants and so they ought not to be considered as accretions to the mortgaged property. But it has to be remembered that occupancy holdings are not transferable as a general rule; they are transferable by custom or local usage. The defendants do not allege in the written statement that occupancy holdings in mauza Madhopur are transferable by custom and we are informed that there is no evidence to suggest that there is such custom. This being the position the acquisitions could not be made by a stranger and it must follow that the defendants could only have acquired them as mortgagee in possession and not otherwise. This being the position, it must follow that the occupancy holdings in question were an accretion to the mortgaged properties.

8. I must accordingly hold that the decision of the Court below is correct, The appeal fails and must be dismissed with costs.

James, J.

I agree.