JUDGMENT : K.B. Asthana, J. (for self and for Yashoda Nandan, J.) 1. Our brother N.D. Ojha finding some difficulty in resolving disputed questions of law arising in the writ petition under Article 226 of the Constitution, by which petition the Petitioner Shiv Shanker Singh had challenged the correctness of the decision of the Board of Revenue in a Second Appeal, referred the following questions to a Full Bench : 1. Can a licence, coming into being on account of mortgage of occupancy holding, be revoked without first paying the mortgage consideration? 2. Will such a licence stand revoked merely by filing a suit for possession? 3. Is it necessary to give the date on which the licence was revoked and the manner in which it was revoked in the plaint of the suit filed for possession of an occupancy holding by the mortgagor against the mortgagee? 4. If the answer to question No. 1 is in the nagative, could a suit for possession be filed in the Revenue Court u/s 180 of the U.P. Tenancy Act merely by asserting that the mortgage consideration has been satisfied from the usufruct? and. 5. What would be the effect of the decision in Hansu Ahir's case in regard to the finding in Mahabal's case, that the mortgagor is entitled to seek the relief for possession against the mortgagee in a properly constituted suit in the Civil Court? 2. In order to appreciate as to how this reference to a Full Bench arose, some material facts may be stated: Certain agricultural plots were settled by the then zamindar with one Bhaggan Lal, and his nephews, sons of deceased brother Bhaggi Lal, conferring upon them occupancy rights under the U.P. Tenancy Act of 1939. They, thus, became the occupancy tenants thereof. They executed a usufructuary mortgage in favour of Ram Bharosey Singh and put the mortgagee in possession of the occupancy plots. A division of the holding seems to have taken place between Udit Lal son of Bhaggan Lal and Bhagwati Lal, a grandson of Bhaggi Lal and the mortgaged plots came to the share of Udit Lal who became the exclusive tenant thereof. However, the mortgagee, Ram Bharosey Singh, remained always in actual possession. After the death of Ram Bharosey Singh, his son, Shiv Shanker Singh (the Petitioner) came into possession of the occupancy plots as mortgagee. However, the mortgagee, Ram Bharosey Singh, remained always in actual possession. After the death of Ram Bharosey Singh, his son, Shiv Shanker Singh (the Petitioner) came into possession of the occupancy plots as mortgagee. Udit Lal instituted a suit u/s 180 of the U.P. Tenancy Act of 1939 for possession of the occupancy plots by ejectment of Shiv Shanker Singh, the mortgagee, on the allegation that the mortgage-money had been paid off by the usufruct and Shiv Shanker Singh, having refused to deliver possession of the mortgaged plots despite demands remained in possession thereof without consent of the land-holder and his possession otherwise was not in accordance with law. The suit was defended by Shiv Shanker Singh, inter alia, on the plea that he was a mortgagee in possession and that at any rate he being recorded as an occupant of the disputed plot in 1356 Fasli acquired Adhivasi rights under the U.P. Zamindari Abolition and Land Reforms Act which had come into force on 1st July 1952, therefore, he could not be ejected. The latter plea succeeded and Udit Lal's suit was dismissed by the Revenue Court by its judgment dated 6-5-1953. After the death of Udit Lal, his heir, Smt. Sonkali, and others then instituted a suit in the court of the Assistant Collector First Class against Shiv Shanker Singh under Sections 229-B/209/202 of the U.P. Zamindari Abolition and Land Reforms Act for a declaration that the Plaintiffs were Bhumidhars in possession over the land in dispute and the Defendant, as an Asami, being a mortgagee in possession, was liable to be evicted and the possession be delivered to the Plaintiffs. It was alleged by the Plaintiffs that the decision dated 6th May 1952 in the previous suit u/s 180 of the U.P. Tenancy Act of 1939 was of no avail having been nullified by the amendment of the U.P. Zamindari Abolition and Land Reforms Act 1953 (Act XVI of 1953) and the Defendant's position was that of an Asami, or, of a licencee. Shiv Shanker Singh the Defendant, contested the suit on the grounds, inter alia, that he became a hereditary tenant and had acquired the rights of a Sirdar under the U.P. Zamindari Abolition and Land Reforms Act and that the suit was barred by principles of res-judicata and limitation. Shiv Shanker Singh the Defendant, contested the suit on the grounds, inter alia, that he became a hereditary tenant and had acquired the rights of a Sirdar under the U.P. Zamindari Abolition and Land Reforms Act and that the suit was barred by principles of res-judicata and limitation. The Assistant Collector First Class decreed the suit of the Plaintiffs holding that the Defendant, Shiv Shanker Singh, was merely an Asami and the suit of the Plaintiffs was neither barred by limitation nor by principles of res-judicata. The Additional Commissioner on appeal affirmed the decree of the trial court. The Defendant, Shiv Shanker Singh, went up in second appeal before the Board of Revenue. 3. Two main points which were urged on behalf of the Defendant-Appellant before the Board of Revenue were firstly, that, according to the Plaintiffs' admission in the suit filed u/s 180 of the U.P. Tenancy Act, 1939, to the effect that the mortgage money was paid off, the mortgage was not subsisting on the date of vesting and the Defendant having not been evicted as trespasser within the time allowed by law he acquired rights of a sirdar under U.P. Zamindari Abolition and Land Reforms Act and secondly that the decree dated 6-5-1953 in the previous suit u/s 180 of the U.P. Tenancy Act operated as res judicata. A learned Judicial Member of the Board of Revenue, who heard the appeal, dismissed it and upheld the decree of the lower courts. The learned Member, however, observed in the course of his judgment that the fading recorded in the previous suit, that the Defendant had become an Adhivasi u/s 20(c) of the U.P. Zamindari Abolition and Land Reforms Act and was not liable to be evicted, was legally erroneous yet it would operate as res-judicata as that suit was filed in the court of competent jurisdiction and as such the decree in that suit could not be said to be a nullity. But the learned Member, further, found that the question in the present suit was different from the question in issue in the previous suit, and, since the matter in that suit was substantially different, the rule of res-judicata, actual or constructive, did not apply. But the learned Member, further, found that the question in the present suit was different from the question in issue in the previous suit, and, since the matter in that suit was substantially different, the rule of res-judicata, actual or constructive, did not apply. It is against this judgment of the Board of Revenue that Shiv Shanker Singh filed the writ petition under Article 226 of the Constitution on the main ground that no relationship of mortgagor and mortgagee subsisted between the parties and that the decree in the suit filed u/s 180 of the U.P. Tenancy Act operated as res-judicata, the suit of the Plaintiffs was liable to be dismissed and as the Board of Revenue fell into an error apparent on the face of the record its decision was liable to be quashed by a writ of certiorari. 4. It appears that, on behalf of the Petitioner, Shiv Shanker Singh, great stress had been laid on the allegation made by Udit Lal in his plaint in the previous suit u/s 180 of the U.P. Tenancy Act to the effect that the mortgage money had been paid off by the usufruct and the Defendant's possession thereafter was that of a trespasser, and it was argued that on the allegations in the plaint, the suit fell within the jurisdiction of the Revenue Court and the decision rendered in that suit even though legally erroneous would operate as res-judicata between the parties. On behalf of the Respondents it was urged that after the amendment of the U.P. Zamindari Abolition and Land Reforms Act (Act 1 of 1951) by Act XVI of 1953 with retrospective effect the Defendant, Shiv Shanker Singh being a mortgagee in possession could not acquire Adhivasi rights ripening into Sirdari rights and at best he would be an Asami and as such liable to be ejected on the suit of the land-holder u/s 202 of the U.P. Zamindari Abolition and Land Reforms Act. It was also contended that a concurrent finding of fact having been recorded by the Revenue Courts that the relationship of mortgagor and mortgagee subsisted between the parties on the date of vesting under the U.P. Zamindari Abolition and Land Reforms Act, would be binding and could not be interfered with in writ jurisdiction by this Court. It was also contended that a concurrent finding of fact having been recorded by the Revenue Courts that the relationship of mortgagor and mortgagee subsisted between the parties on the date of vesting under the U.P. Zamindari Abolition and Land Reforms Act, would be binding and could not be interfered with in writ jurisdiction by this Court. It was further contended that the decision of the Board of Revenue to the effect that the matters in issue in the two suits were substantially different and the rule of res-judicata did not apply being at worst an error of law was not amenable to a writ of certiorari. 5. As appears from the referring order of brother Ojha, the arguments at the Bar by the learned Counsel for the parties were spread over a large canvas covering multifarious aspects as to the nature and the character of respective rights of a mortgagor and a mortgagee of an occupancy tenancy, the transfer of which was prohibited by the provisions of the U.P. Tenancy Act of 1939. The difficulty in finding a solution to the question that arose was further heightened by a series of decisions of this Court of learned Single Judges and Division Benches suggesting solutions which by no means appear to be uniform. It is this uncertainty of law which necessitated the reference. 6. Fortunately for us, the decision of the Supreme Court in the case of Raj Narain Pandey and Others Vs. Sant Prasad Tewari and Others, AIR 1973 SC 291 has given us a pragmatic solution and the law declared by it to a great extent has succeded in removing the difficulties and in clearing the conceptual confusion. Viewed in the light of the decision of the Supreme Court in the case cited above some of the questions referred to us may not arise. We are not concerned in this writ petition with the consideration of the arguments advanced before the writ Bench mentioned above as we are not constituted to decide the writ petition but we have to answer the questions. 7. We think that answer to the questions referred must be worked out on the basis of the declaration of law of the Supreme Court in Raj Narain v. Sant Prasad (supra). In that case after noticing two Full Benches of our High Court: (1) Ghassu and Another Vs. 7. We think that answer to the questions referred must be worked out on the basis of the declaration of law of the Supreme Court in Raj Narain v. Sant Prasad (supra). In that case after noticing two Full Benches of our High Court: (1) Ghassu and Another Vs. Babu Ram and Another, AIR 1944 All 25 ; and (2) Mahabal Singh and Another Vs. Ram Raj and Others, AIR 1950 All 604 and approving the decisions therein, the learned Judges of the Supreme Court concluded as follows in paragraph 9 of the reported judgment at page 294: In the light of the above mentioned Full Bench decision, it cannot be disputed that the status of the Defendant-Appellants was analogous to that of mortgagees. It also cannot be disputed that the successor of the original mortgagor would be entitled to recover possession of the mortgaged land from the Defendant-Appellants on payment of the mortgage money. Five propositions from the Full Bench case of Ghassu and Another Vs. Babu Ram and Another, AIR 1944 All 25 were culled out by the Supreme Court and quoted with approval. They are as follows: 1. That the usufructuary mortgage of an occupancy holding by a tenant is void and not voidable. 2. That a mortgagor after giving possession to the mortgagee cannot recover possession of the holding without paying the money which he had taken from the mortgagee. 3. That a mortgagee of an occupancy holding by remaining in possession over 12 years does not extinguish the rights of the mortgagor to redeem him and by such possession the mortgagee only prescribes for mortgagee rights. 4. That it is open to the mortgagor to seek possession of the holding by tendering the consideration which he had received and he may do so by a redemption suit. 5. The relationship which comes into existence as a result of the mortgagee of an occupancy holding and its possession being transferred to the mortgagee, though not strictly speaking that of a mortgagor and a mrotgagee, is analogous to that relationship, and the action which is raised by the mortgagor to recover possession of the holding on payment of the money due to the mortgagee, though not strictly in the nature of redemption, is analogous to a redemption suit. The legal position that emerges out from what has been approved by the Supreme Court and what has been declared by it in Raj Narain v. Sant Prasad (supra) is clear. Though the usufructuary mortgage of an occupancy holding by the tenant is void yet the relationship between the tenant and the mortgagee will be analogous to that of a mortgagor and a mortgagee, and so long as the mortgage money remains unpaid the mortgagee has a right to retain possession and such possession cannot in law be adverse to the rights of the mortgagor. It follows that the only remedy for obtaining possession by a mortgagor of an occupancy holding from the mortgagee in possession is by way of filing a suit in the nature of a suit for redemption. The learned Judges of the Supreme Court have been careful not to describe the mortgagee in possession as a liceacee but have held his possession to be like that of a mortgagee liable to restore possession to the mortgagor on payment of mortgage money. A suit, therefore, for recovery of possession by the mortgagor of an occupancy tenancy from the mortgagee in possession not being a suit mentioned in the Schedule of the U.P. Tenancy Act 1939, in our opinion, always lay in a civil court which will be the only forum having jurisdiction to entertain it. It is not necessary for us to refer to and examine the various cases mentioned in the referring order of Brother Ojha inasmuch as after declaration of law by the Supreme Court, many of them have lost their efficacy and binding force. 8. Since the concept of licence has not been applied by the Hon'ble Judges of the Supreme Court to define the legal relationship between the mortgagor and the mortgagee in possession of an occupancy tenancy, it is difficult to answer the questions 1, 2, 3 and 4 as they stand inasmuch as a licence does not come into existence on account of mortgage of occupancy holding. In the terms of the Supreme Court the relationship is analogous to or like that of a mortgagor and mortgagee and the only manner in which the mortgagor could recover possession of the occupancy tenancy was by way of a suit in the nature of a suit for redemption on payment of the mortgage money. No question of revocation of any licence is involved. No question of revocation of any licence is involved. The questions Nos. 1, 2 and 3 as framed do not call for any answer. However, it may be observed that no question of regaining possession of the occupancy tenancy by the tenant arises till the mortgage consideration is paid to the. mortgagee. 9. As to question No. 4, the only answer could be that no suit u/s 180 of the U.P. Tenancy Act will lie against a mortgagee in possession of occupancy tenancy as he does not and cannot be treated as in possession without consent of the land-holder or otherwise in accordance with law. He would be in possession as a mortgagee and would prescribe only mortgagee rights. 10. In regard to the latter part of question No. 4 it may be pointed out that in Mahabal Singh's case (supra) which has been approved by the Supreme Court in Raj Narain's case (supra) it has been held that the mortgage of an occupancy tenancy was void and that such a mortgage "does not effect the property mortgaged and does not confer upon the mortgagee any right to enforce the mortgage. Equally clearly the mortgagor is unable to rely upon such a transaction." It has also been held that "the cause of action in a suit for redemption is quite different from the cause of action in an ordinary suit for ejectment or possession, where the mortgagor under a void mortgage offers to restore the benefit he has received from the mortgagee." Dealing with the two second appeals arising out of suits for possession filed against the mortgagees treating them as trespassers and without making a mention of the mortgages it was observed: According to the view of law enunciated above, it is clear that the mortgagors are entitled to recover possession subject to the payment of the money received from the mortgagors and no question of limitation arises in the case. The possession of the mortgagees was a permissive possession and the only right they have is to be allowed to claim the money which the mortgagors had received. The plaint as framed, however, does not justify the granting of this relief to the Plaintiffs in the two cases. Both the cases conveniently ignored the mortgage transactions and the Plaintiffs put themselves forward as hereditary tenants of the land and treated the mortgagees as trespassers. The plaint as framed, however, does not justify the granting of this relief to the Plaintiffs in the two cases. Both the cases conveniently ignored the mortgage transactions and the Plaintiffs put themselves forward as hereditary tenants of the land and treated the mortgagees as trespassers. They sued not only for possession but damages also. The cause of action was also wrongly stated the Plaintiffs did not offer to restore the benefit which they had received from the mortgagees as a condition precedent to their obtaining the relief for possession. Upon the present allegations in the two plaints, it is not possible to grant the relief for possession to the Plaintiffs against the Defendants. The cases will, therefore, go back to the trial court and the Plaintiffs of the two cases will be allowed to amend their plaint in the light of the above observations. The Defendants will be allowed to raise such pleas in defence as may be open to them, and the parties will be entitled to produce such additional evidence as may appear necessary. The court will then pass a proper decree according to law. 11. In view of the law laid down in Mahabal Singh's case (supra) and approved by the Supreme Court it is clear that a suit for possession by a mortgagor of an occupancy tenancy could lie only in the civil court by making an offer to restore the benefit he had received from the mortgagee. This would be a suit in the nature of a suit for redemption and no question of revoking any licence will arise. Analogous means "bearing some correspondence or resemblance; similar in certain circumstances or relations." When in respect of the mortgage of an occupancy tenancy which is void it is said that it is analogous to a mortgage it does not mean that all the incidents of a valid mortgage become applicable to such a mortgage. Only such of the incidents will apply as have been made applicable by the decisions which declare it to be analogous to a mortgagee. The incidents broadly speaking, are that the possession of the mortgagee will be permissive and not adverse and that the mortgagee will be entitled to remain in possession till the mortgagor restores back the benefit received by him from the mortgagee. 12. The incidents broadly speaking, are that the possession of the mortgagee will be permissive and not adverse and that the mortgagee will be entitled to remain in possession till the mortgagor restores back the benefit received by him from the mortgagee. 12. When the transaction of mortgage is void and "the mortgagor is unable to rely upon such a transaction" and "it does not confer upon the mortgagee any right to enforce the mortgage" it cannot be said that the mortgagor and mortgagee are entitled to enforce the terms of the mortgage in regard to satisfaction of the mortgage money from the usufruct of the mortgaged property. The mortgagee is only entitled to remain in possession till the equities are adjusted namely till the mortgagor restores the benefit he has received from the mortgagee. A similar view was taken by a Division Bench of this Court in Shyam Rathi v. Khalil 1972 ALJ 381. This was the state of law before the coming into force of the U.P. Zamindari Abolition and Land Reforms Act. What would be the effect of the statutory provisions contained in the U.P. Zamindari Abolition and Land Reforms Act in regard to the relationship of the mortgagor and mortgagee tinder a usufructuary mortgage of occupancy tenancy and what would be their respective rights and liabilities under the said Act are questions with which we are not concerned and express no opinion hereon. 13. Learned Counsel for the Petitioner submitted that on the mortgage money being paid up the mortgage as well as the right of the mortgagee to remain in possession comes to an end. In support of this contention reliance was placed upon the cases of (1) Surajnath Ahir and Others Vs. Prithinath Singh and Others, AIR 1963 SC 454 and (2) Prithi Nath Singh and Others Vs. Suraj Ahir and Others, AIR 1963 SC 1041 . On the authority of these two cases it was urged that in view of the allegations made in the plaint of the suit u/s 180 of the U.P. Tenancy Act that the mortgage money had been paid off from the usufruct there was no subsisting mortgage on the date of vesting under the U.P. Zamindari Abolition and Land Reforms Act. We are, however, unable to agree with this submission. We are, however, unable to agree with this submission. The cases referred to above will not be helpful as they deal with a valid mortgage and not a mortgage of an occupancy tenancy which is void. Such a mortgage has been directly considered and the law in respect of it has been declared authoritatively by the Supreme Court in Raj Narain v. Sant Prasad (supra). 14. The answer to the question No. 5 is that the decision in Hansu Ahir v. Ram Adhar Rai Second Appeal No. 1176 of 1959 decided on 10-7-1963 (Alld) and the apparent conflict arising between it and the observations in the Full Bench case of Mahabal Singh and Another Vs. Ram Raj and Others, AIR 1950 All 604 stands resolved by the law as declared by the Supreme Court in Raj Narain v. Sant Prasad (supra). In our opinion the decision in Hansu Ahir's case (supra) does not lay down the correct law. 15. Let the case now be listed before the learned Single Judge for final decision. N.D. Ojha, J. I agree.