MITHAN LAL, J. : The following question has been referred by a learned single Judge to a Division Bench.

"Whether a mortgagee under a void mortgage of an occupancy holding acquires the status of an asami under the provisions of the Zamindari Abolition and Land Reforms Act."

2. Briefly stated the facts are that the predecessor-in-interest of plaintiff respondent Tulsi Mallah executed a mortagage of his occupancy holding in favour of the predecessor in interest of the defendant appellant on 14th May, 1913, for a consideration of Rs. 500/-. The present suit was instituted in the civil court for possession of the disputed property on payment of mortgage money. The defence was that the suit was not maintainable in the civil court and that the defendant had become Asami and the only proper remedy for the plaintiff was to institute a suit under Section 202 of the U.P. Zamindari Abolition and Land Reforms Act (hereinafter called as the Act).

3. Both the Courts below have overruled the defence and have decreed the suit on payment of Rs. 500/- holding that the defendants had not become Asamis and were mere licencees. When the matter came before a learned single Judge of this Court he found conflicting opinions in the cases of Judhishthir Prasad v. Shanti Prasad Shukur. AIR 1955 MUC (All) 4171. In that case late Mr. Justice Kidwai toon the view that a mortgagee under a void mortgage could not be treated to be an Asami. The same view was taken toy the learned single Judge himself, who had made the reference, in the case of Ram Adhar Pathak v. Raj Kumar Singh, decided by him on 19th November 1962. A different view was, however, expressed toy Kailash Prasad, J. in Janki Koeri v. Jamuna Koeri 1962 RD 328 : (AIR 1963 All 535). It was on account of the aforementioned conflicting views that a reference of the question has been made to a Division Bench.

4. Sri N.D. Ojha, learned counsel for the appellant, has contended that under clause (d) of Sub-Section (1) of S. 21 of the Act a mortgagee in actual possession from a person belonging to any of the classes given in clauses (i) to (vii) and (ix) of S. 19 shall be deemed to be an Asami. In this case the mortgage being of an occupancy holding, it will be covered by clause (iii) of Section 19. Consequently, the appellant became Asami and the only proper remedy for the respondent was to institute a suit for ejectment under S. 202 of the Act. For this purpose learned counsel has submitted that even though the transfer of an occupancy holding or the holding of a hereditary tenant may not have been transferable under the law yet on reading Ss. 19 and 21(i)(d) together the effect was that every person who was in fact, a mortgagee from the tenants described in the aforementioned clauses of Section 19, would acquire the status of an Asami. Sri V.P. Migra, learned counsel for the respondent has, on the other hand, contended that, according to the provisions of the U.P. Tenancy Act or under the old N.W.P. Tenancy Act of 1881 certain transfers of non-transferable tenancies such as occupancy tenancies were permissible, and the Full Bench in the case of Khiali Ram v. Nathu Lal, ILR 15 All 219 expressed the view that, the right of occupancy though may not be strictly transferable yet the legislature did not prohibit the occupancy tenant from transferring the right, to occupy. According to him S. 19 applies only to such rights which were transferable under the provisions of law and only those mortgagees in actual possession have become Asamis who were in possession as mortgagees of transferable tenures. According to his submission a mortgagee of are occupancy holding was not a mortgagee in law and could not be treated to be in actual possession as a mortgagee and so clause (d) of Sub-Section (1) of S. 21 of the Act did not apply. He has also contended that according to the earlier decisions of this Court the position of such a mortgagee is, that of a mere licencee and in no sense has

he, become a mortgagee.