NAYUDU, J, : This second appeal is directed against the judg­ment and decree of the Subordinate Judge's Court, Upper Assam Districts at Jorhat, dated 27-10-60 reversing the judgment and decree of the Munsiff of Jorhat dated 31-5-60 (2) The facts of the case may be briefly stated; The appellant's father mortgaged the suit land in the year 1925 in favour of the first defendant in the suit, the mortgage being an usufructuary one. It is claimed in the plaint that the suit has been brought by the appellant as having succeed­ed to the original mortgagor on his death. He avers that the mortgagee was to continue in possessing of the lands, pay the land revenue and to adjust the usufruct of the land against the interest. On 18-6-3S the suit property was sold for the re­covery of Government land revenue which had fallen into arrear and was purchased by Defen­dant No. 12 in the suit, for Rs. 40/-. Subsequently, the property was sold by the purchaser Defendant No. 12, in favour of defen­dant No. 1, who in turn as owner effected a number of transfers in favour of different persons including a gift in favour of his sons and grand­sons impleaded as defendants 2 to 6 in the suit. The of her defendants are alienees either from defendant No. 1 or from the of her defendants. The suit, is laid for redemption of the mortgage executed by the plaintiff's father in favour of defendant No. 1 and claiming that the mortgage had been redeemed apparently by the realisations made by the defendant No. 1 and also otherwise. The appellant prayed in his plaint for khas posses­sion of the suit land and for costs and of her reliefs. (3) The suit was resisted by the defendant No. 1 mainly as well as by the of her defendants who filed different written statements. The appellant prayed in his plaint for khas posses­sion of the suit land and for costs and of her reliefs. (3) The suit was resisted by the defendant No. 1 mainly as well as by the of her defendants who filed different written statements. The defen­dant No. 1 in his written statement pleaded that the mortgage which was of 1925 had been redeemed by late Chengeli the father of the appellant-plaintiff even' before the land was put up for sale for recovery of the Government land revenue; that in the revenue sale the defendant No. 12 had purchased the land covered by the entire patta 'bearing No. 104, which comprised not only the !and originally mortgaged to the defendant No. 1 but also of her lands, and that subsequent to the sale and after the issue of the sale certificate and obtaining delivery of possession, the defendant No. 12 sold the property to defendant No. 1 for Valuable consideration, and in pursuance thereof the defendant No. 1's name was mutated in the record-of-rights. The defendant No. 1 further claimed that the plaintiff's right, title and interest had been extinguished by the revenue sale and that he could not lay any claim whatsoever in the suit land which was purchased by the defendant from the lawful owner the purchaser in the revenue sale, namely, the defendant No. 12. The defen­dant No. 12, supported the written statement of the defendant No. 1 and so did the of her defen­dants. (4) The learned Munsiff, who tried the suit, framed a number of issues. He held that the defendant! No. 1 made wilful default in the pay­ment of the Government land revenue and caused the land to be sold in revenue sale and purchased the same through the defendant No. 12, who was his benamidar. (4) The learned Munsiff, who tried the suit, framed a number of issues. He held that the defendant! No. 1 made wilful default in the pay­ment of the Government land revenue and caused the land to be sold in revenue sale and purchased the same through the defendant No. 12, who was his benamidar. He, further held that the mortgage which was executed as far back as 1925 must be deemed to have been redeemed by virtue of the Assam Money Lenders Act which allows a period of 12 years for automatic redemption by way of adjustment of the usufruct, arid, as the defendant had enjoyed the suit land which was rupit (cultiv­able) land, for over thirty years, and so holding the learned Munsiff allowed redemption without payment On, these findings the learned Munsiff decreed the suit for redemption of the mortgage and for khas possession and directed each party to bear their own costs. (5) Aggrieved by this decision of the learned Munsiff the defendant No. 1 took the matter up in appeal to the Subordinate Judge's Court, Upper Assam Districts at Jorhat. The learned Subordinate judge in a carefully written judgment held that the entire land covered by the periodic patta "No. 104, consisting of 11 Bighas, of which only 8 Bighas and odd land was the land mortgaged to defendant) No. 1, was sold for arrears of land revenue to the defendant No. 12; that as the patta stood in the name of the plaintiff and his brothers at the time of the sale, the plaintiff must have had knowledge of the sale and even according to the plaintiff's witnesses P. Ws. 2 and 3, the plaintiff was in occupation of some portion of the patta land; that according to the plaintiff's own admission, the defendant No. 1 denied the title of the plaintiff as far back as 1943; that there •were conflicting claims made in the matter of effecting mutation and that the defendant No. 1's name was mutated as far back as 1939 by right of his purchase; that the Same was cancelled on the representation of the plaintiff on or about 18-5-45 and that the order of cancellation was set aside and the defendant No. 1's name was finally mutated on 4-7-45, a fact which was within the knowledge of the plaintiff. The learned Subordinate Judge further held on the facts established in the case that for more than 12 years before the institution of the suit the defendant No. 1 had exercised rights of owner­ship of the land by virtue of his purchase from the defendant No. 12 and that he had sold the land in favour of her persons; that even trans­ferees from/ him are on some portion of the land for more than twelve years prior to the institution of the suit, and that accordingly the plaintiff's suit is barred by limitation, even if it be held that the mortgage subsisted. So holding, he allowed the appeal and dismissed the suit. Hence the present second appeal. (6) The main point taken in this appeal by Mr. Chaudhirry, the learned Counsel for the appellant, is that as the mortgage in favour of defen­dant No. 1 was a usufructuary mortgage, he could bring a suit for redemption under Article 148 of the Limitation Act within 60 years from the date of the mortgage, and that the suit being one for redemption, it must be deemed to have been filed in time. Further" in order to get over the legal result of the extinction of the equity of redemption by virtue of the revenue sale, reliance is placed on Section 90 of the Indian Trusts Act, and it i» claimed that the defendant No. 1 wilfully and with a view to get unfair advantage to himself allowed the land revenue to fall into arrears so that the property might be sold away and then to get the same purchased ultimately in favour of defendant No. 12 who was only a name-lender to him, and that as the defendant No. 1 subsequently obtained a transfer of the property from the defen­dant No. 12, his benarnidar, the defendant No. 1 must in law be regarded as holding the property for the benefit of the mortgagor, and particular reli­ance is placed on the illustration (c) of Section 90 of the Indian Trusts Act. (7) Before we deal with these submissions, it would be necessary to consider the admitted or proved facts in the case -- (1) the usufructuary mortgage is of the year 1925, the term of the* mortgage being that the usufruct should be adjust­ed towards the interest accruing from time to time, (2) the property comprised in the mortgage was only a part of the entire land which originally belonged to the plaintiff's father under periodic Patta No. 104., (3) the land covered by Patta No. 104 was sold for arrears of land revenue 'bn 18-6-38, (4) that the property purchased by defen­dant No. 12 was sold by him to the defendant No. 1 for consideration on 29-8-38, (5) that the name of defendant No. 1 by virtue of his purchase from the defendant No. 1.2 was finally mutated in the revenue records in respect of the suit land on 4-7-45, (6) that subsequent to the! purchase by defendant No. 1 from the defendant No. 12, a number of transfers had been effected by him in favour of the of her defendants, and (7) that the present suit had been brought on 19-8-59. (8) It is contended by Mr. Pathak, the learned Counsel for the respondents, that whatever rights may have existed prior to the revenue sale, those rights must be deemed to have been totally ex­tinguished by reason of the revenue sale held under the Assam Land and Revenue Regulation for the recovery of the Government revenue which is paramount, and that once that sale was confirm­ed and sale certificate issued, all of her rights and claims for the property must be deemed to have disappeared, and that until the revenue sale is set aside by appropriate proceedings, the plaintiff would not be entitled to any remedy or relief. In this connection he places reliance on Section 82 of the Assam Land and Revenue Regulation, which is as follows: "82. (1) A sale for arrears of revenue shall not be annulled by a Civil Court, except on the ground of its having been made contrary to the provisions of this Regulation, and on proof that the plaintiff has sustained substantial injury by reason of the neglect of those provisions. (1) A sale for arrears of revenue shall not be annulled by a Civil Court, except on the ground of its having been made contrary to the provisions of this Regulation, and on proof that the plaintiff has sustained substantial injury by reason of the neglect of those provisions. (2) A suit to annul such a sale shall not be entertained upon any ground, unless that ground has been specified in an application made to the Commissioner or Provincial Government under Sec­tion 79, or unless it is instituted within one year from the date of the sale becoming final under .Section 80." (3) No person shall be entitled to contest the legality of a sale after having received any portion of the purchase money." (9) It is not disputed in this case that none of the steps contemplated by the Assam Land and Revenue Regulation had been taken, to have the 'revenue sale; set 'aside and that that sale had, therefore, become final and absolute. Normally, therefore, any relief which the plaintiff could claim, by virtue of his being a mortgagor of the property, only be claimed after the revenue sale had been properly set aside, inasmuch as that sale conveyed absolute title to the purchaser free from all encumbrances, under the law. (10) It is to get over this difficulty that reliance has been placed by the learned Counsel for the appellant on Section 90 of the Indian Trusts Act which runs as follows : "Where a tenant for life, co-owner, mortgagee cr of her qualified owner of any property, by availing himself of his position as such, gains an advantage in derogation of the rights of the of her (persons interested in the property, or where any such owner, as representing all persons interested in such property, gains any advantage, he must hold, for the benefit of all persons so interested, the advantage so gained, but subject to repayment toy such persons of their due share of the expenses' properly incurred, and to an indemnity by the same persons against liabilities properly contracted, in gaining such advantage." Illustration (c) to the section runs as follows: "A. mortgages land to B, who enters into possession. B allows the Government revenue to fall into arrear with a view to the land being put up for sale and his becoming himself the purdhaser of it. B allows the Government revenue to fall into arrear with a view to the land being put up for sale and his becoming himself the purdhaser of it. The land is accordingly sold to B. Subject to the repayment of the amount due on the mortgage and of this expenses properly in­curred as mortgagee, B holds the land for their benefit of A." (Having regard to the language of the section and the illustration thereto above quoted it is con­tended that in the instant case the defendant No. 1 allowed the land revenue to fall into arrears with the object of getting the land sold and himself purchasing it, and that although the land was pur­chased in the revenue sale by the defendant !No. 12, the latter was a mere benamidar of the defendant No. 1, and, therefore, the purchase must be deemed to be on behalf of the defen­dant No. 1, and, as in any case, the defendant No. 1 obtained the property for himself from the defendant No. 12, the section would apply to him and according to the illustration, he must be held in law to be holding the property for the benefit of the plaintiff. Before this section could be availed of, the plaintiff should have established firstly that the defendant was liable to pay the land revenue him­self; secondly, that he wilfully allowed the land' revenue to fall into arrears for the purpose of having the same sold in revenue sale so that he could purchase it; and, thirdly, that he himself had purchased; the property in the revenue sale. On the findings of the learned Subordinate Judge, is clear that there is no evidence on record worth the name to establish that the defendant No. 1 wilfully allowed the land revenue to fall into arrears so that he could have the land sold in revenue sale with a view to purchasing it. In the instant case, admittedly the purchase was not by the defendant No. 1, and hence the language of the section or the illustration cannot strictly speaking apply to the present case, and, in order to get over this the appellant contended before us that the defendant No. 12 was a benamidar of the defendant No. 1 and that the purchaser in, fact was the defendant No. 1. There is absolutely no evidence on record on this point, and the learned Subordinate Judge, in our opinion, rightly rejected this contention. In fact, as the discus­sion of the matter was not full and complete by the lower appellate Court, we had to look into the evidence on record and we are satisfied that further is absolutely no evidence worth the name), on record either to establish that the defendant No. 1 wilfully, in order to purchase the property, allowed the land revenue to fall into arrears or, that he intended to purchase the property, or that j the defendant No. 12 purchased the property on his behalf or for his benefit, and, in our opinion, the lower appellate Court was fully justified in rejecting these contentions. The burden of establishing them was clearly on the plaintiff. (11) That apart, there are a few circumstances In the case which militate against the case now sought to be put forward before us under Section 90 of the Indian Trusts Act. The arrears, of Government land revenue related to Patta No. 104, and, as already pointed out, it is only j a portion of this patta land that had been mortgaged to the defendant No. 1. Even if any arrears| accrued under the patta, obviously it has as much i the duty of the plaintiff as of anyone else to pay ' the arrears or to ensure that the land was not sold for the recovery of the arrears. The plain­tiff could not disgorge himself of his own res­ponsibility in the matter merely taking an ad­vantage of the clause in the mortgage deed that the land revenue shall be payable by the defendant No. 1. It is unnecessary to refer to the of her point. We are satisfied that there are absolutely no-materials on the record of this case to entitle the plaintiff to the benefit of Section 90 of the Indian Trusts Act, (12) Hence the plaintiff cannot sue for redemp­tion of a mortgage which became extinct by virtue of the revenue sale, and the present suit, therefore, cannot be maintained. We are satisfied that there are absolutely no-materials on the record of this case to entitle the plaintiff to the benefit of Section 90 of the Indian Trusts Act, (12) Hence the plaintiff cannot sue for redemp­tion of a mortgage which became extinct by virtue of the revenue sale, and the present suit, therefore, cannot be maintained. (13) It is necessary to point out in this context that the defendant No. 1 pleaded that the I mortgage was; redeemed by the plaintiff's father l some six years or so after the mortgage was ex­ecuted, and this case was accepted by the lower appellate Court, and this finding of fact is binding on us in second appeal. On that premises obviously there can be no suit for redemption of a mort- j gage which had already been redeemed and on' that ground the suit had been rightly dismissed. (14) Another point which it is necessary for us to notice is that the mortgage on which reli­ance is placed by the appellant is a usufructuary mortgage, one of the terms of which being that the usufruct should be adjusted towards the in­terest accruing. That being so, under the pro­visions of the Transfer of Properly Act, there is no question of any accounting for the usufruct and the principal amount will become repayable, a fact which has escaped the notice of the learned Munsiff, and obviously, there could be no question of any redemption without payment in such a case. All this, however, becomes academic in view of the findings reached by the lower appellate Court with which we are fully in agreement, namely, that the mortgage is extinguished by the revenue sale and that there was no longer any mortgage in! respect of which the relief of redemp­tion could be claimed, and, in fact the mortgage was redeemed by the appellant's father with the result that there was no question of any redemp­tion at all. Taking all these facts and circum­stances, we experience no difficulty whatsoever it agreeing with the conclusion reached by the lower appellate Court. (15) This second appeal, therefore, fails and is dismissed with costs. (16) S. K. DUTTA, J. : I agree. Appeal dismissed.