Simonds, J. - (1.)IN this appeal, which is brought from a judgment and decree of the Judicial Commissioner, North West Frontier Province, dated July 28, 1948, a large number of questions have been debated upon which their Lordships think it unnecessary to express any opinion. The question which is decisive of the matters in dispute is a simple one and the relevant facts can be shortly stated.
(2.)RESPONDENT No.1 to this appeal, Abdul Wahab Khan, claiming that under and by virtue of a deed of August 23, 1939, he had acquired from one K. B. Muqarrab Khan, since deceased, all the rights which the latter enjoyed under a certain mortgage dated May 25, 1921, brought the suit out of which this appeal arises to enforce his rights as mortgagee under that mortgage. His suit was dismissed on various grounds by the Additional Subordinate Judge, Peshawar, on November 24, 1942, but his appeal from that decision was substantially allowed by the Court of the Judicial Commissioner.
It appears to their Lordships that, apart from all other defences available to the appellant in the suit, it is a fatal objection to the claim of respondent No.1 that tinder the deed of August 23, 1939, upon which he founds his claim, he acquired and could acquire no rights of any kind, inasmuch as K. B. Muqarrab Khan had already parted with the rights which he then purported to dispose of.

The history of the matter, so far as it is necessary to state it, starts with a mortgage deed of May 25, 1921, by which one Abdul AKbar Khan (through whom the appellants claim) mortgaged with possession to K. B. Muqarrab Khan for Rs. 23,000 certain lands in Shah Dhand and Shakara including an area of 307 kanals 4 marlas in Shah Dhand. The same land had previously been mortgaged to one Tara Chand for Rs. 12,000. He was paid off out of the Rs. 23,000 and transferred his mortgage rights to K. B. Muqarrab Khan, who will now be referred to as "the original mortgagee. " Of the steps taken by the original mortgagee to obtain possession of the mortgaged land and the disputes that have arisen in regard thereto it is not necessary to say anything. In 1935 there happened the crucial event which in their Lordships' opinion is decisive. On May 18 in that year the land revenue in respect of all or some part of the mortgaged land being long in arrear, and proceedings having been taken for its recovery, the Naib Tahsildar (whose duty it was to report to his superior officer in the Revenue Department) reported as follows : Sanction for the sale by auction of the mortgagee rights has been accorded by the Revenue Commissioner by letter No.123000/ra dated November 15, 1934. May 16, 1935, was fixed for holding the sale. The sale having been held the final bid was knocked down in the name of Faqir Mohammad Khan, Executive Engineer, Mardan, through his brother Mohammad Safdar Khan in lieu of Rs. 5,500. The one-fourth Rs. 1,375 has been deposited into the treasury. Hence this report is submitted for the confirmation of the final bid under Section 92 (Land Revenue Act) in the name of the auction purchaser named above.

(3.)OBJECTION was taken to this report by respondent No.1, but his objection was overruled by the Deputy Commissioner at Peshawar.
On June 3, 1935, the Collector approved of the sale of the mortgagee rights of Rs. 23,000 and the recommendation of the Assistant Collector that "mr. Faqir Mohd Khan may be declared the purchaser of the mortgage rights of 307 kanals 4 marlas,. . . after which the sanction of the Revenue Commissioner for confirmation of the sale under Section 92, Land Revenue Act, will be obtained. "