JUDGMENT Niamatullah, J.
1. This is an appeal from the decree passed by the learned Subordinate-Judge of Budaun upholding the decree passed by a Munsif of that district in a suit brought by the plaintiff-appellant for a declaration that a sub-lease of an occupancy holding executed by defendants 3 and 4 in favour of defendants 1 and 2 is void against the plaintiff and that certain crops standing on a part of that holding,, belonged to defendants 3 and 4 and were liable to attachment and sale in execution of a decree obtained by the plaintiff against those defendants.
2. Defendants 3 and 4 are admittedly occupancy tenants of the lands detailed at the foot of the plaint. They were indebted to the plaintiff and also to defendants 1 and 2. All of them obtained decrees against defendants 3 and 4. The latter executed a registered sub-lease in favour of defendants 1 and 2 for a period of five years in consideration of the debts due to defendants 1 and 2. Thereupon the plaintiff instituted the suit which has given rise to this appeal for the declaration already referred to. Both the Courts below have decreed the suit on the solitary ground that the sub-lease which is in consideration of the debts due to defendants 1 and 2 was void having regard to the provisions of Section 27, Agra Tenancy Act 3 of 1926. The learned Subordinate Judge has gone so far as to hold that any crops grown by the lessees (defendants 1 and 2} should be considered to be the property of the lesser so as to entitle the latter's creditors to attach it in execution of their decree. Both the Courts below seem to have proceeded on the assumption that the plaintiff's ease rested solely on the-void character of the lease. This however was not the case, at any rate, the only case.
3. The Courts below are clearly right in holding that the lease executed by defendants 3 and 4 in favour of defendants 1 and 2 contravenes the provisions of Section 27, Agra Tenancy Act, and is for that reason void (S. 34 of the same Act). It should however be observed that if the sub-lease had not been in consideration of a debtor other obligation the lease would have been only voidable at the option of the land-; lord. This to my mind is the conjoint effect of Sections 28 and 34(2), Agra Tenancy Act. A lease which offends against the provisions of Section 27 and is therefore void may so far be giver effect to by the parties to it that the sub-lessee may remain in occupation and cultivate the lands sub-let to him. It is only when the landlord institutes a suit for ejectment that the sub-lessee will be deprived of possession which he obtained under the sub-lease. A possible view is that the transaction being void it is open to the lesser himself to sue the sub-lessee (under a void sub-lease) to recover possession. Such a suit may or may not be successful unconditionally. In any case, no third person can take any proceedings against the sub-lessee if possession has been delivered to him. It is not possible for the creditors of the occupancy tenant to attach the rights of the occupancy tenant in execution of a decree. The only right which his creditors can have is to attach the standing crops grown by the occupancy tenant himself. It follows that if in the case before me defendants 3 and 4 had delivered possession to defendants 1 and 2 under the sublease executed by them and defendants 1 and 2 grew crops on the land the plaintiff can have no cause of action to obtain any declaration of right. The plaintiff himself can have no right in the land even though the right of defendants 1 and 2 may be imperfect and even non-existent. A mere declaration that defendants 1 and 2 have no right can be of no avail to the plaintiff unless the law gives him a further right to obtain satisfaction of his decree by proceeding against the occupancy tenure. The crops sown by defendants 1 and 2 on the land transferred to them under a void sub-lease cannot be considered to be the property of the occupancy tenant.
4. The learned Subordinate Judge has referred to no rule of law in support of his view to the contrary. I do not think any analogy can be drawn from the rule which entitles the owner of a land to crops standing thereon and sown by a stranger who had no title. In this case the sub-lessee under a void sub-lease is in possession with the consent of the occupancy tenant that consent has never been withdrawn and the occupancy tenant himself lays no claim to the crops grown by the sub-lessee. The latter may be able to substantiate his claim to remain in possession of the lands till the lesser discharges the pecuniary obligations incurred by him if the lesser sues for possession impugning the lease granted by himself. In any case it is impossible to lend countenance to the view that the creditors of an occupancy tenant may attach the crops sown by his sub-leasee under a void sub-lease. If the plaintiff's case had rested on nothing more than the void character of the sublease as assumed by the lower Courts I would have allowed this appeal and dismissed the plaintiff's suit outright. But I find that the plaintiff's allegations in the plaint have been misunderstood. He does not allege that the sub. lease executed by defendants 1 and 2 being in contravention of the provisions of Section 27, Agra Tenancy Act, is void. He prays for a declaration that it is void on a totally-different ground, namely, that it is fictitious. He alleges in express terms that in spite of the paper transaction the understanding between defendants 1 and 2 on the one hand, and defendants 3 and 4, on the other, is that the latter shall retain actual possession of the occupancy tenure and that defendants 1 and 2 though shown in papers as sub-lessees would in fact have no rights as such. It is also alleged in the plaint that conformably with the understanding above referred to defendants 3 and 4 had grown the crops which were standing at the time of the institution of the suit. Accordingly the plaintiff claims the right to attach the crops which, on the facts stated in the plaint, undoubtedly belong to defendants 3 and 4. These allegations were not enquired into by the trial Court and do not seem to have been given prominence to, before the learned Subordinate Judge.
5. The learned advocate for the respondents insists on this aspect of the case being tried. If it be found on enquiry that, in spite of the ostensible character of the sub-lease in favour of defendants 1 and 2 defendants 3 and 4 have continued in possession of their occupancy holding and had grown the crops standing thereon at the time of the institution of the suit, the plaintiff undoubtedly has a cause of action to have the real character of the transaction and the ownership of the crops declared. Both the Courts below seem to have decreed the suit on a bare question of law. Their view having been sot aside in this Court I think a case exists for remand under Order 41, Rule 23, Civil P.C. Accordingly I allow this appeal, set aside the decree passed by the Courts below and remand the ease. under Order 41, Rule 23 to the Court of first instance to determine the questions referred to above and to dispose of the case according to law. Costs hitherto incurred shall abide the result.