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 f