JUDGMENT

Mukerji, J. - The facts of this case are a little complicated and will have to be stated at some length in order to appreciate the points that arise for decision in second appeal. The plaintiffs who were minors, instituted the suit out' of which j this appeal has arisen, on 22nd December 1924, for ejectment of defendants 1 to 4. Their case was that they were occupancy f tenants of the lands in suit and the defendants 1 to 4, who were cosharers in the village, but who were not the entire body of cosharers, ejected them from the lands in suit on 25th June 1924.

2. The suit was met by a number of objections. The first Court dismissed the suit and the second Court affirmed the decision. The ground on which the lower appellate Court affirmed the decree of the first Court was that a certain order or supposed order of the Assistant Collector made in pursuance of an application of the plaintiff's mother, defendant 5, was a bar to the maintenance of the suit. We shall have occasion to state the facts relating to that application at length later on.

3. In this Court it is contended for the plaintiffs-appellants that the learned Judge of the Court below was wrong in his opinion that the plaintiffs' right of occupancy is no longer subsisting.

4. It appears that the plaintiffs' father, Baldeo Lohar, was an occupancy tenant of the lands. He mortgaged the lands in suit, which are four in number, on 5th October 1893, for a period of 21 years in favour of two of the cosharers of the village, viz., Fakir Husain and Safdar Husain. The term of the mortgage expired in 1914. In that year, there was a dispute between the mortgagee E&kir Husain and Mt. Sadika Bibi, the widow of Safdar Husain, as to who was to hold the lands which had been mortgaged in the year 1893. Mt. Sadika Bibi claimed that the lands were her khudkasht and Fakir Husain maintained that both she and he held the lands as mortgagees. The Tah-sildar however by an order, dated 1st October 1914, directed that the name of Baldeo Lohar should be expunged from the revenue records and the lands should be recorded as the khudkasht of Mt. Sadika Bibi. Later on, both Sadika Bibi and Fakir Husain, on account of a compromise between themselves, remained in possession of the lands in suit.

5. Baldeo made a mortgage of these lands, in 1916 in favour of one Durga Charan, but could not give Durga Charan possession, because the lands were in the occupancy of the previous mortgagees. Baldeo accordingly instituted a suit for redemption against the former mortgagees and their successors-in-title. The suit, was decreed on condition of payment of a small sum of money which was paid. Formal delivery of possession was made to Baldeo on 15th June 1919.

6. Baldeo died during the pendency of the redemption suit and his sons, the present plaintiffs, were substituted in his place. The plaintiffs, in spite of formal delivery of possession, could not obtain it and they instituted two suits. One was a suit u/s 95, Tenancy Act, 1901, and later they filed the suit out of which the present appeal has arisen.

7. The suit u/s 95, Tenancy Act, was unsuccessful throughout. The first Court framed four issues. Issue 2 was whether the plaintiffs were occupancy tenants. Issue 4 was whether the defendants held the lands in suit as their khudfeasht. The Assistant Collector came to the conclusion that the plaintiff's right of occupancy had come to an end and the defendants held the land as their khudkasht. There was an appeal to the District Judge and the judgment was affirmed. On second appeal a learned Judge of this Court affirmed the decision of the District Judge. The learned Judge found himself bound by the finding of the District Judge on facts and he also held that the plaintiff's suit was barred because they had been out of possession for more than six months. A Letters Patent appeal was filed and it was pending when the Court below gave its decision in the present litigation.

8. The judgment in the Letters Patent appea