JUDGMENT

Richards, J. - The facts of the case referred are very simple. The defendant by usufructuary mortgages mortgaged to the plaintiff his proprietary rights in a holding. Since the date of the mortgage, that is to say, for nine years before the institution of the suit, the defendant has continued in occupation of certain lands comprised in the holding which were prior to the mortgages in his own cultivation. The present suit was instituted to recover possession of inter alia this land. Both the Courts below gave the plaintiff a decree subject to the occupancy rights of the defendant in the land in his own cultivation. Section 41 of Regulation II of 1877 of the Ajmere Code is as follows Any person who may have, whether before or after the passing of this Regulation, lost or parted with his/proprietary rights in any holding, either, temporarily or permanently and has since continued in occupation of any of the lands comprised in such holding which, as proprietor, he retained under his own cultivation, shall have a right of occupancy in such lands, at a rent five annas four pies in the rupee less than the prevailing rate payable by tenants at will, for lands of similar quality and with similar advantages.

2. Such persons are hereinafter called exproprietary tenants.

3. Any agreement executed, whether before or after the passing of this Regulation by an ex-proprietary tenant to pay a higher rate of rent than that prescribed by this Section, shall be void."

4. The only question for decision is has the defendant a right of occupancy as prescribed by the section in the lands which were before the mortgages and have since been in his own cultivation. I think he has and that the Courts below were right. The case is important because a contrary decision will, I think, unsettle what has heretofore been considered the law in Ajmere. The plaintiff contends that by the usufructuary mortgages the defendant did not lose or part with his proprietary rights either temporarily or permanently within the meaning of the section. Very much the same question came before this Court in the case of Indar Sen v. Naubat Singh and in the case of Madho Bharthi v. Barti Singh The question in these cases arose under the provisions of Section 7 of the old Rent Act, XII of 1881. That Section 7 is as follows: "Every person who may hereafter lose or part with his proprietary rights in any mahal shall have a right of occupancy in the land held by him as sir in such mahal at the date of such loss or parting, at a rent which shall be four annas in the rupee less than the prevailing rate payable by tenants at will for land of similar quality with similar advantages." In the case of Indar Sen v. Naubat Singh 7 A. 553 three Judges decided that a usufructuary mortgagor by virtue of a usufructuary mortgage lost or parted with his proprietary rights. It seems to me that from the year 1885 up to the time of the decision of Madho Bharthi v. Barti Singh "the decision in the case of Indar Sen v. Naubat Singh was accepted. Strange to say, however, the learned judges in the case of Madho Bharthi v. Barti Singh overruled the Full Bench decision, which had been accepted and acted upon for about nine years without expressing any view on the propriety of the decision in Madho Bharthi v. Barti Singh . I would undoubtedly follow it if I were called upon to give a decision on the provisions of Section 7 of Act XII 1881 or on any other Act containing exactly similar provisions. It is necessary, however, to point out that Section 41 of the Regulation contains very important words, which were omitted from Section 7 of Act XII of 1881. These words are the expressions, "either temporarily or permanently." Sometime after the decision of Madho Bharthi v. Barti Singh the present Tenancy Act was passed and Section 10 of that Act expressly provides that on any transfer otherwise than by a gift or exchange between the co-sharers, a proprietor shall have a right of occupancy in his sir. The Regu