JUDGMENT : RICHARDS, J. 1. The facts out of which this appeal arises are fully set forth in the referring order of our brother TUDBALL. It has been consistently held by this Court that under Act XII of 1881 an occupancy tenant could confer on a person who lent him money at least a right which would entitle the mortgagee to remain in possession of the holding so long as the tenancy lasts. It follows that any fraudulent and collusive relinquishment by the occupancy tenant to the zamindar, the latter being a party to the fraud and collusion will be void against the mortgagee. We understand the court below to find that the occupancy tenant relinquished the occupancy tenancy to the zamindars, defendants in the suit, in consideration of certain promises, the defendants knowing well that the plaintiffs were mortgagees, in other words, to find that there was fraudulent collusion between the defendants and the occupancy tenant. Our learned brother was evidently of opinion that the plaintiff was entitled to the declaration he sought but for one reason, namely, that he considers that having regard to the proceedings which had taken place in the Revenue Court the declaration would be perfectly useless. 2. It is true that the zamindars brought a suit for ejectment after the relinquishment in the Revenue Court and obtained a decree which was affirmed by the Commissioner and which has been actually executed. At the same time we are told that the defendants in the Revenue suit have applied to the Board of Revenue in revision and that the Board of Revenue have postponed their final decision until after the decision of the present suit. We take it from this that it will be within the power of the Board of Revenue to set aside the decree for possession in the Revenue Court and to restore the plaintiffs in this suit to possession if they consider that the plaintiffs are legally entitled to be restored. The matter in the Revenue Court is therefore still sub judice and there has been no final decree determining the occupancy tenancy. We agree with the court below as did our learned brother that the plaintiffs are entitled to the declaration which they seek. We therefore dismiss the appeal with costs.