JUDGMENT 1. This is a suit brought under the Bengal Tenancy Act VIII (B.C.) of 1869 by certain occupancy raiyats to recover possession of their lands. The defence was that the tenants had committed breach of the conditions of their lease by transferring their interest to a third person without the consent of the landlord. The learned District Judge has reversed the order of the first Court and has given the Plaintiffs a decree. The transaction which forms justification for the Defendant's conduct in ejecting the Plaintiffs is thus described by the District Judge;-- "In consideration for a sum of money lent to them by another person they allowed him the enjoyment of their holding agreeing that he should continue in it until the loan was repaid. This transaction is called the girbi mortgage." The transaction so described falls exactly within the terms of the definition of an usufructuary mortgage given in sec. 58 (d) of the Transfer of Property Act. It is not disputed that if the tenants had transferred their right as occupancy tenants to a third party they would not have committed a breach of the conditions on which they held the lands. It is contended by the learned Counsel for the Plaintiffs-Respondents that the transaction is really only a sub-lease to an under raiyat. We think that the transaction cannot be so regarded, for, under the terms of the agreement the Defendants had transferred ail interest in their jote to the third party until they were in a position to repay with interest due thereon the money that they had borrowed from him. It cannot be said that during this interval the tenants held or cultivated the lands under their landlord as under the terms of their lease they agreed to do. The transaction, therefore, is of a very different description from a subletting. It has been rightly described by the Court of first instance to constitute an incumbrance on the holding. We agree, therefore, with the Court of first instance that the tenants, by creating this usufructuary mortgage, have committed a breach of the conditions under which they held the lands and consequently their suit should be dismissed, the order of the lower Appellate Court being set aside and the order of the Court of first' instance being restored with costs in this Court and the lower Appellate Court.