The mortgagor's power to lease the mortgaged property is subject to the condition that the lease does not impair the value or security of the mortgage, and a permanent lease with a fixed rent in perpetuity is not permissible.

JUDGMENT

B.K. Mukherjea, J. - This appeal is on behalf of the plaintiffs and it arises out of a suit commenced by them in the Court of the Sadar Munsif at Faridpur for recovery of khas possession of the land in suit on establishment of their title to the same as purchasers at a mortgage sale.

2. The disputed property appertains to C.S. Dag No. 501 of Mouza Faridpur and it admittedly belonged to one Monoranjan Chowdhury whose interest was recorded in Khatian No. 149 as kayemi mokarari jote bearing a rental of Rs. 16 a year. Under this mokarari interest of Monoranjan there was a non-transferable tenancy held by one Patal bearing a rental of Rs. 10 and under Patal's tenancy again there was an under-raiyati held by one Umesh Sen.

3. On 27-9-1926, Monoranjan executed a mortgage bond in favour of some of the plaintiff's and the predecessor of the rest to secure an advance of Rs. 20,000 advanced by the latter and his mokarary right in G. Section Plot No. 501 was one of the properties included in the mortgage. Sometime before the execution of the mortgage deed Patal had executed a heba-bil-ewaj in favour of one Maijuddi and Monoranjan instituted a suit against Maijuddi and others for recovery of khas possession of the lands comprised in Patal's tenancy on the allegation that Patal having no transferable right in the lands, no title accrued to the transferee on the basis of the transfer. This suit was Title Suit No. 171 of 1926 of the Court of the Sadar Munsif of Faridpur and the suit was pending when the mortgage bond mentioned above was executed by Monoranjan. The suit was decreed by the trial Court but the judgment was reversed on appeal. Thereupon there was a second appeal taken to this Court by Monoranjan and this Court sent the case back on remand for rehearing. After rehearing, the lower appellate Court affirmed the judgment of the trial Judge and dismissed the appeal. This final judgment is dated 31-5-1933. In execution of this decree Monoranjan took khas possession of 0. Section Plot No. 501 and on 23-11-1923, he granted a permanent mokarari lease to defendant 1 Sasadhar Mandal in respect of the southern 5 cottas of land comprised in this C.S. Dag on receipt of a selami of Rs. 375 and at a fixed rental of Rs. 7/8/0 a year. Defendant 1 who is a pleader raised structures on the land and is even now living there with his family.

4. After the lease was granted the mortgagees instituted a suit to enforce the mortgage bond and besides the mortgagor Sasadhar defendant 1 in this suit was impleaded as a party defendant. The suit was not contested by any of the defendants and it culminated in an ex parte preliminary decree on 1-3-1935. The decree was, made final on 30-7-1935. It was then put into execution and all the mortgaged properties were sold and purchased by the decree-holders themselves on 19-12-1935. The sale was confirmed on 24-12-1936, and the purchasers thereafter took delivery of possession through Court. In respect of C.S. Plot No. 501 the decree-holders got only symbolical possession. They asked defendant H to quit the land which was in his possession and on his refusal to do so the present suit was brought.

5. The plaintiffs' ease was that Monoranjan had no right to grant a lease after he executed the mortgage and the lease was not binding on the plaintiffs. Even if the lessee acquired any rights on the strength of the lease they were extinguished by the decree in the mortgage suit to which Sasadhar was a party. It was further averred that though the lease granted by Monoranjan to defendant 1 comprised only 5 cottas of land in the south, the defendant was possessing, in addition to this about 6 cottas and 10 chittaks of land in the north as part of the tenancy without any right. The plaintiffs therefore prayed for khas possession of the entire property in possession of defendant 1.

6. The defence was that the mortgagor had a right to grant the lease in question in the ordinary course of management and the lease was binding on