1. The suit out of which this appeal has arisen was instituted by Raghunath Prasad, Kedarnath and Hiralal against Kiran Swaroop and Mt. Haidari for the possession of an open land together with a Chabutra standing, thereon and for mesne profits.

The plaintiff's case was that the property in suit was mortgagee with possession in their favour by Mt. Ludako by a registered deed on 3-4-1939; that thereafter Mt. Ludako took the property on rent from the mortgagees and continued in possession of the property as mortgagees' tenant until her death sometime in 1946 that on 3-7-1947 the defendant Kiran Swaroop. got Mt. Haidari to execute a sale deed of the property in his favour and took possession of the' property.

The plaintiffs alleged that as mortgagees they were entitled to the possession of the property and that the defendant's possession was illegal and unauthorised. On these allegations the plaintiffs claimed the recovery of possession of the property as well as mesne profits at the rate of Rs. 10/- per month. Mt. Haidari admitted the plaintiffs' claim.

The defendant Kiran Swaroop contested the suit inter alia on the ground that Mt. Ludako was not the owner of the property and