N. D. Ojha, J. - (1.) DURING proceedings under the U. P. Consolidation of Holdings Act an objection was filed by the appellants claiming to be sirdars of the land in dispute. In the basic year the name of respondent No. 1 stood recorded as tenure holder; where as the appellants were recorded as Qabiz as mortgagees in the remarks column. The ob jection of the appellants was allowed by the Consolidation Officer, but on appeal by res pondent No. 1 it was held that the appellants were only asamis of the land in dispute. The Deputy Director of Consolidation on a revi sion filed by the appellants held them to be sirdars., Respondent No. 1 filed a writ peti tion in this Court which was allowed by a learned Single Judge by the judgment under appeal, whereby the order of the Deputy Director of Consolidation was quashed and he was directed to decide the revision afresh.
(2.) IN order to appreciate the respec tive contentions made by the learned counsel for the parties it would be necessary to have a few facts. The land in dispute was oc cupancy tenancy of the predecessors-in-in-tersest of respondent No. 1 and was mortgaged in 1882 in favour of the predecessors-in-in-terest of the appellants. A suit was filed for redemption in the year 1928 and a preli minary decree was passed on 21-6-1928 for redemption of the mortgage on payment of Rs. 1320/3/3 within six months from the date of the decree. It, however, appears that thereafter neither the mortgagors paid the amount aforesaid nor was a final decree got prepared. The mortgagees, therefore, con tinued in possession notwithstanding the pre liminary decree aforesaid. Counsel for the appellants urged that the mortgage being of occupancy tenancy was hi the nature of a licence as held in Mahabal Singh v. Ramraj, (1950 All LJ 713) = (AIR 1950 All 604) (FB) and the effect of the institution of the suit for redemption in the year 1928 was that the licence stood revoked and since there after the possession of the appellants ceased to be permissive and became adverse. It was urged that since no suit for possession was filed thereafter within limitation the appellants had acquired sirdari rights and the order of the Deputy Director of Consolidation was correct in law. Learned counsel placed re liance on certain decisions wherein it was held that a licence could be revoked by the institution of a suit for possession. Those cases need not be discussed in detail because it is well settled that a bare licence stands revoked on the wish of the licenser which can be expressed even by instituting a suit for possession. The question which falls for consideration in the instant case, however, is whether a mortgage of an occupancy tenancy stands on the same footing as a bare licence. A licence, unlike a contract, creates no mutual obligations and rights between the parties and it can be revoked on the sweet will of the licenser. A licence coupled with creation of interest in land stands on a different foot ing. When a mortgage is created of occu pancy tenancy, a relationship comes into being whereby mutual obligations and rights are created. The mortgagor is under an obligation to pay the mortgage consideration and has the right to recover possession on pay ment of the mortgage consideration as held in Mahabal Singh's case 1950 All LJ 713=(AIR 1950 All 604) (FB) (supra). Likewise the mortgage has the right to remain hi possession over the land until the mortgage considera tion is paid to him and he is under an obli gation to return possession on payment of the mortgage consideration. The rights and obligations of the mortgagor and the mortgage of an occupancy tenancy are so condi tioned that performance of one is conditional on performance of the other. In Jai Narain v. Kedar Nath, (AIR 1956 SC 359), the following observations were made in regard to a conditional decree:- "When a decree imposess obligations on both sides, which are so conditioned that per formance by one is conditional on perfor mance by the other, execution will not be ordered unless the party seeking execution not only offers to perform his side, but when objection is raised, satisfied the execut ing Court that he is in a position to do so. Any other rule would have the effect of varying the conditions of the decree." The principle laid down in the case aforesaid can be applied to a mortgage of an occu pancy tenancy. Since hi the instant case, admittedly the mortgagor did not pay the mortgage consideration which he was directed to do by the preliminary decree passed in 1928, he did not discharge the obligation on his part and, consequently, the mortgage was entitled to remain hi possession over the landi mortgaged to him till the mortgage considera tion was paid to him. In this context we are of the opinion that possession of the mortgage did not get converted into that of a trespasser, merely by the institution of the suit for redemption hi the year 1928 he continued to be a mortgage of an oc cupancy tenancy. As held hi Mahabal Singh's case 1950 All LJ 713 = (AIR 1950 All 604) (FB) (supra) the limitation prescribed for filing a suit for redemption did not apply to a mortgage of occupancy tenancy and the mortgage of such tenancy was bound to restore possession on the mortgage considera tion being paid to him irrespective of any period of limitation. In view of Samharu v. Dharamraj Pandey, (1969 All LJ 943) = (AIR 1970 All 350) (FB) such a mortgage would acquire asami rights under Section 21 (1) (d) of the U. P. Zamindari Abolition and Land Reforms Act The Deputy Director of Con solidation committed a manifest error of law in taking a contrary view and his order was rightly quashed by the learned Single Judge. In the result, the appeal fails and is dismissed with costs. Appeal dismissed.;