JUDGMENT

R.N. Gurtu, J. - The facts giving rise to this second appeal are as follows:

2. The Plaintiffs are the representatives of Mukhtar Singh who is dead. Mukhtar Singh applied u/s 4 of the U.P. Encumbered Estates Act and, after his death, the Plaintiffs were brought on the record in his place. The written statement submitted by Mukhtar Singh u/s 8 of the Encumbered Estates Act showed that Mukhtar Singh was the owner of Mohal Mukhtar Singh, Khewat No. 1, village Talibpur alias Kanakpur. The area of this mohal is 163 bighas and 19 biswas. The written statement also gave particulars concerning the debts of Mukhtar Singh and indicated that plot No. 67 measuring 6 bighas and 13 biswas was subject to a possessory mortgage executed in favour of the ancestors of the Defendants for Rs. 1,600/ - on 6th July 1928. In due course, simple money decrees were passed in favour of the creditors including a decree in favour of the Defendants and the record was then sent to the Collector u/s 19 of the Encumbered Estates Act. The nature and extent of the properties of Mukhtar Singh was mentioned and the decrees were also mentioned and transmitted. On 16th October, 1943, the Defendants along with other creditors applied to the Collector that the amount due from the debtor might be liquidated by the grant of a mortgage to them This request was accepted and on 29th March, 1944 a mortgage deed was executed in favour of the creditors including the Defendants (the mortgagees of the deed dated 6th July, 1928, The statutory mortgage created u/s 25 of the Act was in respect of 120 bighas and 4 biswas in mohal Mukhtar Singh and the mortgage was for a period of twenty years. Delivery of possession was given of the property covered by the mortgage on 8th October, 1944. The names of the creditor-mortgagees were recorded over 120 bighas and 4 biswas. The mortgagees' names, however, continued to be recorded over 6 bighas and 13 biswas out of the land originally mortgaged to them. It appears that the Plaintiffs (Mukhtar Singh's representatives) did not immediately apply for possession of the area covered by the mortgage deed dated 6th July, 1928 after the passing of the simple money decree dated 21 st August 1943 in favour of the Defendants but waited. After the mortgage in favour of the creditors had been executed u/s 25 of the Encumbered Estates Act, they applied for the recovery of 6 bighas and 13 biswas (which was originally subject to the mortgage of 1928). The application was made u/s 35 of the Encumbered Estates Act. The Collector refused to restore possession on the ground that the said 6 bighas and 13 biswas had been included in the mortgage liquidation scheme and that these were included in the statutory mortgage granted u/s 25.

3. The learned Commissioner on appeal dismissed the appeal holding that objection should have been taken at the time when the scheme for liquidation was prepared.

4. Having failed to get possession from the Collector the Plaintiffs filed the present suit which was decreed and they were ordered to get possession over 6 bighas and 13 biswas area of plot No. 67 situate in khewat No. 1 in village Talibpur alias Kanakpur.

5. An appeal was then preferred by the Defendant, the original mortgagees', who are in possession. The appeal was dismissed with costs. The view of the lower appellate court was that the decision of the Collector that the Plaintiffs were not entitled to possession over the 6 bighas and 13 biswas area was ultra vires and beyond the jurisdiction of the Collector and was a nullity. It pointed out that Section 35 clearly stated that when a person is entitled to possession of any property, he might apply to the Collector to be put in possession over it and the Collector shall deliver possession of the property to him and that it is not open to the Collector to refuse to deliver possession. At the same, time, the lower appellate court held that there was no provision u/s 35 or in any other section of the Act that in case t