JUDGMENT

1. This is a plaintiff's appeal against the decree dated 11th February 1931 of the Additional Subordinate Judge of Lucknow reversing the decree dated 30th April 1930 of the Munsif Havali Lucknow.

2. The facts of the case are that three brothers Balwant Singh, Lachman Singh and Bakhtawar Singh owned in equal shares, 23 bighas 4 biswas 3 biswansis land in patti Balwant Singh in village Ant Garhi Saunra, Pergana and tahsil Malihabad, District Lucknow. Lachman Singh and Bakhtawar Singh mortgaged with possession 15 bighas 9 biswas 8 biswansis representing their two-thirds shere out of the said area to Gayadin Panday by a mortgage-deed (Ex. 1) dated 6th July 1886 for Rs. 300. On 13th September 1891 they executed a deed of further charge (Ex. 2) for Rs. 600. After the execution of these deeds Bakhtawar Singh died issueless and his share was inherited by his two surviving brothers Balwant Singh and Lachman Singh. The plaintiff Madho Singh is the son of Balwant Singh and defendant 1, Nanhey Singh, is the son of Lachman Singh. Gayadin also died leaving a son Dadhich Prasad as his heir. The plaintiff's case was that he, as a person interested in the equity of redemption, on 11th June 1927 paid to Dadhich Prasad a sum of Rs. 1,250 in respect of the mortgage-deeds, Exs. 1 and 2 and redeemed the mortgaged property and obtained possession of it. The documentary evidence in the case shows that on 21st July 1927 the plaintiff made an application in the Revenue Court for mutation in Ms favour on the allegation that he had redeemed the property. Nanhay Singh, defendant 1, intervened and claimed mutation of half the share in his name. Madho Singh made a statement agreeing to mutation being effected in favour of both to the extent of half and half and admitted that they were in possession in that manner. Mutation was effected accordingly. On 6th July 1929 Nanhay Singh, defendant 1, executed a deed of gift in favour of Kallu Singh, defendant 2. This gift included 11 bighas 12 biswas 11/2 biswansis out of the share redeemed from Dadhich Prasad. When Kallu Singh applied for mutation in his favour on the basis of the deed of gift, the plaintiff objected on the ground that he had redeemed the entire share and was in possession of it. He claimed that unless Nanhay Singh contributed to the extent of his share, mutation should not be effected in favour of Kallu Singh. The Revenue Court disallowed the objection and ordered mutation in favour of Kallu Singh on the basis of the deed of gift. Thereupon the plaintiff instituted the present suit claiming a decree for possession in respect of 11 bighas 12 biswas 14 biswansis land out of patti Balwant Singh mutation in respect of which had been made in favour of Kallu Singh.

3. Nanhey Singh, defendant 1, did not contest the suit. Kallu Singh, defendant 2, denied that plaintiff alone had redeemed the mortgages Exs. 1 and 2. He also denied that the plaintiff had obtained possession over the share of defendant 1, in suit, after redemption. The learned Munsif held that the plain-tiff alone had redeemed the mortgages, Exs. 1 and 2, from Dadhich Prasad, and that he had obtained possession of the entire mortgaged property from him when the redemption took place. As a result of these findings he decreed the plaintiff's claim. On appeal the learned Additional Subordinate Judge held that the. plaintiff having agreed to mutation being effected in respect of the property in suit in favour of Nanhey, Singh, must be deemed to have waived his right to retain possession under the charge which accrued in his favour under the old Section 95, T.P. Act, irrespective of the question whether he paid the entire redemption money or not. In this view of the case be allowed the appeal a'nd dismissed the plaintiff's suit.

4. When the case came before us in second appeal, we thought it necessary to remand the ease to the lower appel-late Court for a definite finding on the question whether the redemption of the property in suit had