A. P. SRIVASTAVA, J.

( 1 ) THIS first appeal from order arises out of a suit to recover rent. The plaintiff claimed that his father had lent Rs. 417/- to two persons Lohery and Chotey Lal and had obtained from them as security for the debt a usufructuary mortgage in respect of some birt khakrobi rights which the two persons Posessed. On the same date the two persons had taken a lease of the birt kha-krobi rights by executing a qabuliyat in favour of the plaintiffs father. By the qabuliyat the executants purported to take the property on lease for a fixed period of three years. After the death of his father the plaintiff succeeded to the mortgagee rights and became the landlord in respect of the lease. Lohery, one of the mortgagors and executant of the qabuliyat, having died was succeeded by the defendants Nos. 1 and 2. The Plaintiff further alleged that the rent had been paid by the defendants up to the 7th February, 1934, and that they had not paid any rent thereafter. He, therefore, sued to recover Rs. 306/- as rent for the past six years. The rate of rent agreed upon was Rs. 4/4/- per month.

( 2 ) THE suit was contested on various grounds. It was pleaded inter alia, that birt khakorbi was not a property which could be made the subject of a mortgage or lease, that the original debt had been satisfied and that the defendants were not in possession as tenants.

( 3 ) THE trial Court held that the mortgage was valid and that the defendants were tenants of the birt khakrobi rights. It did not accept the plea that mortgage debt had been satisfied. It, however, dismissed the suit on the ground that it was barred by Article 139 of the Limitation Act. The plaintiff went up in appeal to the Civil Judge who thought that as the qabuliyat relied upon by the plaintiff had not been executed by the landlord also it could create a valid tenancy in favour of the defendants. The relationship between the Parties was, therefore, not that of a landlord and tenant but of a licensor and licensee. The plaintiff could not, therefore claim any rent. The licence having come to an end with the death of the licensor the plaintiff could claim damages for use and occupation. He did not record any specific finding on the question whether birt khakrobi was transferable but appears to have tacitly accepted the view of the learned Munsif on that point. As in his opinion the case had not been properly considered from the point of view of the relationship between the parties being one of a licensor and a licensee and the Plaintiffs right td claim damages for use and occupation had not been dealt with, he set aside the order dismissing the suit and sent the case back to the learned Munsif for being decided according to law. It was left open to the learned Munsif to frame any such further issues as he thought necessary and the parties were declared entitled to produce further evidence.

( 4 ) AGAINST the order of remand the present appeal has been filed and two contentions have been pressed on behalf of the appellants. The first is that the learned Munsif had rightly held that the suit was barred by Article 139 of the Limitation Act and the appellate Court was incorrect in upsetting that finding. The argument in support of this contention is that no rent having been paid after 1934 the tenancy came to an end. The defendants had never taken any license from the plaintiff or his father. There could, therefore, be no question of the plaintiffs recovering any amount from the defendants either as rent or as damages for use and occupation. The other contention is that in any case the birt khakrobi rights were not transferable and could neither be mortgaged nor leased out. The lease being invalid no rent could be claimed from the defendants on its basis.

( 5 ) IT does not appear to be necessary to consider the first contention because the second one appears to be well founded. It may, however be mentioned in connection with the first point that the present suit was a suit

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