Das, J.I think there was a serious error in the order of remand to which I was a party. In dealing with the dispute in regard to the nine bighas of tenancy lands which were of Harakh, I said as follows in the order of remand: "so far as the tenancy lands of Harakh are concerned (and there is no dispute that the 9 bighas of Harakh were tenancy lands) the question is a little more difficult. It appears that the mortgagees in their suit for rent against Harakh got a decree for ejectment against him. The learned Judge on behalf of the respondents argued that as soon as ejectment takes place the raiyati interest is extinguished and the landlord gets into possession freed from the tenancy. That undoubtedly is so; but the question still remains whether the mortgagees treated these acquisitions as merged in the mortgage-security or not. The question is again one of intention and I am not satisfied that the learned District Judge has properly considered all the evidence in the case. The arguments of Mr. C.C. Das have convinced me that the view expressed by me in the order of remand is wholly erroneous. I have no doubt whatever that tenancy lands which are acquired by a mortgagee in possession by virtue of an ejectment decree form an accession to the mortgaged property, and that the mortgagor is entitled to such lands on redemption, provided he pays to the mortgagee the expense of acquiring it. The learned Additional District Judge has very properly proceeded on the order of remand; and I wish to make it clear that if we are obliged to vary the decree passed by him, it is not because there is any error in his judgment, but because the order of remand, upon which he has proceeded, is itself wrong.

2. A question was raised before us whether it is open to the appellants to challenge the correctness of the order of remand. The remand was not under the provisions of C. 41, Rule 23; and there being no appeal from an order of remand, in the exercise of the inherent powers of the Court, this Court, in my opinion, has complete powers to investigate the correctness of the order.

3. In regard to the other question raised in this appeal, the finding of the learned Judge is a finding of fact, and is binding on us in second appeal.

4. I would vary the decree passed by the Court below by providing that, upon paying to the mortgagees defendants the expense of acquiring it, the plaintiffs do recover khas possession of (nominally) nine bighas of khast land referred to as nine bighas of khast of Hardeo, Jagdeo and Nand, sons of Harakh, in the judgment of the learned Judge.

5. There will be no order as to costs incurred in this Court.

Ross, J.

6. I agree to the order proposed.