Judgment 1. This is plaintiffs second appeal against a judgment of affirmance. 2. There was one Nand keshwar Lal. As found by the trial Court, the plaintiffs are the heirs of this Nand Keshwar Lal since dead. 7 acres and odd lands of mauza Sikandara, appertaining to khata No. 233 constituted one holding and it belonged to Nand Keshwar Lal. 2.17 acres of land out of this holding was given in rehan by Nand Keshwar Lal to one Daroga Singh under a registered rehan deed dated 30.05.1927. This was followed by another rehan deed executed by Nand Keshwar Lal in favour of Daroga Singh abovenamed, in respect of 1.65 acres of land of khata. This was executed on 16.04.1934. After execution of these two rehan deeds, 3.60 acres of land of khata No. 233 remained in possession of Nand Keshwar Lal. It is undisputed that the liability to pay rent for the lands given in rehan under the two rehan deeds, deeds, which were registered, was on Daroga Singh, the mortgagee. 3. Certain further facts are undisputed and they are these. The entire holding comprising of khata No. 233 was sold for arrears of rent in execution of a rent decree, brought by the ex-intermediary against Nand Keshwar Lal. The execution case number was 603 of 1935. The auction-sale was held on 28.05.1935, and the entire holding was purchased by one Raj Kumar Singh. This Raj Kumar Singh was the sisters husband of Daroga Singh; the sisters name of Daroga Singh being Gulabo Kuer. The defendants are the heirs of Raj Kumar Singh; Daroga Singh and Raj Kumar Singh both being dead, Nand Keshwar Lal filed an application before the Executing Court for setting aside the auction-sale in question. This was registered as Miscellaneous Case No. 397 of 1935. A compromise was entered into between Nand Keshwar Lal and Raj Kumar Singh. This miscellaneous case, as will be evident from Ext. G, certified copy of Register of Miscellaneous Judicial Cases, wrongly mentioned in the judgment of the appellate Court as Ext. G was disposed of in terms of the compromise on 21.03.1936. A compromise was entered into between Nand Keshwar Lal and Raj Kumar Singh. This miscellaneous case, as will be evident from Ext. G, certified copy of Register of Miscellaneous Judicial Cases, wrongly mentioned in the judgment of the appellate Court as Ext. G was disposed of in terms of the compromise on 21.03.1936. The plaintiffs case which was not challenged before this Court was that Raj Kumar Singh agreed to pay the rehan money of the two registered rehan deeds, abovementioned to Daroga Singh and on his doing so, Nand Keshwar Lal did not press his claim for the setting aside of the auction-sale. The miscellaneous judicial case was, accordingly, dismissed in terms of compromise. Thereafter, writ of delivery of possession was issued in favour of the auction-purchaser for delivery of possession over the entire holding and delivery of possession was effected on 23.04.1937. 4. The plaintiffs instituted the instant suit for redemption of 3.60 acres of land, abovementioned, that is to say, the remaining lands of khata No. 233 minus the lands given in rehan under the two registered rehan deeds, on the allegation that Nand Keshwar Lal had given these lands in Urfi rehan (verbal rehan) to Daroga Singh on 15th June, 1935, the liability for payment of rent of which lands as well was on him. The only allegation made in para 7 of the plaint was that if without any knowledge of and information to the plaintiffs, any fraud was practised, the result of such fraud would not be binding on them. The consideration money of this Urfi rehan was said to be Rs. 250.00 which was said to have been tendered by the plaintiffs and on refusal, this suit for redemption was filed after depositing the same. 5. Defendant No. 1, Ambika Singh son of Raj Kumar Singh contested the suit. He denied about the existence of any Urfi rehan. The allegation of fraud and collusion was also disputed and it was asserted that Raj Kumar Singh came and remained in possession of the disputed lands in his capacity as auction-purchaser at a Court-sale and after him, the defendants are coming in possession as such. 6. The trial Court found that the plaintiffs failed to prove the existence of any Urfi rehan. It further found that the plaintiffs have no subsisting title to the disputed lands. The trial Court dismissed the suit. 6. The trial Court found that the plaintiffs failed to prove the existence of any Urfi rehan. It further found that the plaintiffs have no subsisting title to the disputed lands. The trial Court dismissed the suit. The plaintiffs took up the matter in appeal. The appellate Court concurred with the finding of the trial Court about there being no Urfi rehan. The further finding recorded by the lower appellate Court was that the defendants were in possession of the suit lands by virtue of auction-sale and delivery of possession. The result was that the appeal too was dismissed and the plaintiffs have now come up to this Court in second appeal. 7. The plaintiffs pray for redemption of 3.60 acres of land on the ground that it was given in Urfi rehan to Daroga Singh. The story of this Urfi rehan has not been accepted by any of the two Courts below and this finding of fact, duly recorded, is binding on this Court. Faced with this finding of fact, the only submission of Mr. Mazhar Hussain, learned counsel for the appellants, was that even the story about Urfi rehan stood discredited, since Daroga Singh, as a mortgagee, was liable to pay rent for the lands given in the two earlier registered mortgage deeds and there being default in payment of rent for the entire holding, the purchase at auction would enure to the benefit of the plaintiffs under the provisions of Section 90 of the Indian Trusts Act, 1882 . This contention was refuted by Mr. Nagendra Rai, learned counsel for the respondents. 8. The plaintiffs sought for redemption of 3.60 acres of land of khata No. 233. We are not concerned in the instant case with the other lands of khata No. 233 given in mortgage to Daroga Singh earlier to the Urfi rehan in the year 1935. The story of Urfi rehan having itself been disbelieved by concurrent findings of the two courts below, the plaintiffs cannot be legally entitled for redemption of 3.60 acres of land on the ground of any such Urfi rehan. The story of Urfi rehan having itself been disbelieved by concurrent findings of the two courts below, the plaintiffs cannot be legally entitled for redemption of 3.60 acres of land on the ground of any such Urfi rehan. The submission of the learned counsel for the appellants, however, was that in spite of the non-existence of the Urfi rehan, Daroga Singh was liable to pay rent of the lands given to him under the registered mortgage deeds and he having failed to pay rent for the same and his action though combined with the action of Nand Keshwar Lal resulted in the auction-sale. In such a situation the principles of Sec.90 of the Indian Trusts Act shall apply. It is not possible to accept this contention of learned counsel for the appellants. 9. Before the benefit of Sec.90 of the Indian Trusts Act can be availed of, it must be shown (i) that the party against whom relief is sought used his position as such; (ii) that he gained an advantage by so doing; and, (iii) that the advantage was gained in derogation of the right of the person interested in the property. In support of his contention learned counsel for the appellants placed reliance on a decision of the Supreme Court in the case of Smt. Basmati Devi V/s. Chamru Sao ( AIR 1964 SC 1707 ). Their Lordships of the Supreme Court held in that case that where both the mortgagor and the mortgagee are liable to pay rent and rent decree and sale in execution of it are brought about because of the default of both of them and the mortgagee purchases the mortgaged land in execution sale, the fact that the mortgagor had made a default, does not alter the position that the mortgagee had also defaulted in paying the rent he was liable to pay. By his default he has contributed to the position that a suit had to be brought for arrears of rent and ultimately to the position that the property was put to sale in execution of the decree obtained in the suit. This contribution to the bringing about of the sale was a direct result of his position as a mortgagee and, as such, Section 90 of the Indian Trusts Act shall be applicable. 10. This contribution to the bringing about of the sale was a direct result of his position as a mortgagee and, as such, Section 90 of the Indian Trusts Act shall be applicable. 10. Before a plaintiff seeks to avail of the benefit of Section 90 of the Indian Trusts Act, he has to plead and prove requisite facts warranting the application of that section. The mortgagee under the two registered deeds was Daroga Singh. The purchaser at auction was Raj Kumar Singh. True, this Raj Kumar Singh was the sisters husband of Daroga Singh but, as strenuously contested by Mr. Nagendra Rai, there is no whisper in the plaint about this Raj Kumar Singh being a farzidar or benamidar of Daroga Singh. The plaintiffs alleged default in payment of rent on the part of Daroga Singh. This was disputed by the defendants in the written statement who pleaded that Daroga Singh used to pay the quota of his rent to Nand Keshwar Lal. No satisfactory evidence has been adduced on behalf of the plaintiffs to prove any default of rent on the part of Daroga Singh. Pointing out to the register of rent suit, the submission of learned counsel for the appellants was that since the suit had been brought for the entire rental of khata No. 233, it would imply default in payment of rent on the part of Daroga Singh. If the story set up by the defendants was that Daroga Singh used to pay the quota of his rent to Nand Keshwar Lal and the latter defaulted in making payment of the same, it cannot be said that Daroga Singh contributed to the bringing of the rent suit and consequently the rent sale. It was for the plaintiffs to prove existence of facts to attract to the application of S.90 of the Indian Trusts Act. If they have failed to do so, it cannot lie in their mouth to say that no satisfactory evidence in this regard was adduced on behalf of the defendants as well. 11. After the auction-sale Nand Keshwar Lal filed an application for setting aside the auction-sale. As is undisputed, Raj Kumar Singh entered on the scene. There was a compromise between Raj Kumar Singh and Nand Keshwar Lal. Raj Kumar Singh agreed to pay the rehan money of the two registered rehan deeds. 11. After the auction-sale Nand Keshwar Lal filed an application for setting aside the auction-sale. As is undisputed, Raj Kumar Singh entered on the scene. There was a compromise between Raj Kumar Singh and Nand Keshwar Lal. Raj Kumar Singh agreed to pay the rehan money of the two registered rehan deeds. It appears that this satisfied Nand Keshwar Lal and he did not press his application for setting aside the sale. Having done so as far back as in the year 1936 and having allowed Raj Kumar Singh and after him his heirs to remain in possession of the disputed land for long, it cannot lie in the mouth of the plaintiffs to repudiate the claim of the defendants that the auction-sale was not a genuine sale but only a camouflage for bringing to an end the mortgage deeds. 12. The lower appellate Court has found in para 5 of its judgment that the defendants came in possession of the disputed land on the basis of auction-purchase and delivery of possession, meaning thereby that the auction-purchase was a genuine one. Mr. Rai relied on a Bench decision of this Court in the case of Ramjit Choudhary V/s. Satan Devi (1970 BLJR 756) wherein their Lordships held that the transaction of sale and purchase by the landlord and the subsequent settlements by him were not part of the same transaction or part of the same design, artifice or device brought about by the mortgagee, but were part of the different transactions and that being so, the advantage of S.90 of the Indian Trusts Act cannot be availed of in the eye of law. One Gulabo Kuer and not Raj Kumar Singh, on the own showing of the plaintiffs, was the heir of Daroga Singh. In such a situation, if Raj Kumar Singh acted independently and purchased the property at an auction in a rent execution sale, in the facts and circumstances of the case, Section 90 of the Indian Trusts Act cannot apply. Consequently, the plaintiffs suit for redemption, as sought for the instant case, cannot succeed. 13. The result is that the appeal fails and is dismissed. Hearing fee is allowed at the minimum contested scale. The judgment and decree of the lower appellate Court are hereby affirmed.