Judgment

K. SUBBA RAO, J. : This appeal by certificate under Art. 133 (1) (a) of the Constitution of India is directed against the judgment and decree of the High Court of Judicature at Patna setting aside those of the Subordinate Judge, Gaya, in a suit for redemption of an usufructuary mortgage.

2. Deokinand, the common ancestor of plaintiff-respondents 1 to 4 and pro forma respondents 6 to 12, executed a document dated August 20, 1923, in favour of Mahant Tokhnarain Puri of Nadra, the predecessor-in-interest of defendant 1, hypothecating eight annas milkiat share in mauza Lodipur, Mahimabigha, Tauzi No. 4246 for the purpose of discharging a debt of Rs. 31,701 payable by him to the Mahanth. There are conflicting versions in regard to the nature of this transaction - respondents claim it to be an usufractuary mortgage, while the appellant asserts it to be a lease. The plaintiff- respondents instituted Title Suit No. 4 of 1945 in the Court of the Additional Subordinate Judge IV Gaya, for redemption of the said document on the basis that it was an usufructuary mortgage, for rendition of accounts and for the recovery of surplus profits due to them. The appellant pleaded, inter alia, tha