JUDGMENT Collister, J.
1. This is a decree-holder's appeal which arises out of execution proceedings. It appears that in 1931 the appellant instituted a suit against the respondents for arrears of rent (Suit No. 6 of 1931). The defendants pleaded that they wore not tenants under the Agra Tenancy Act and therefore the suit was not competent, but this plea did not prevail with the Court and the suit was decreed. There was no appeal against that decree, which accordingly became final. Subsequently, the decree-holder put his decree into execution and sought the ejectment of the respondents. The respondents again raised the same plea which they had taken at the trial, and the executing Court found in their favour and dismissed the application for their ejectment by an order dated 28th November 1932. The decree-holder thereupon appealed to the District Judge, and the latter found that the respondents were liable to ejectment. He accordingly allowed tho appeal. This was on 8th November 1933. There was a second appeal to this Court, and a learned Judge allowed the appeal and restored the order of the executing Court. It is from that judgment that this Letters Patent appeal has been preferred. The land in suit is in village Barahru in the District of Agra. Maharaja Scindia at one time held the District of Agra for a considerable period of years, and it is an admitted fact that the respondents wore zamindars of this village and the, revenue of this village was assigned to the appellant. In the beginning of the nineteenth century this district was conquered by the British and since that time it has formed part of British India. There was a settlement in 1875, and it appears from the findings of the lower Appellate Court that settlement was first offered to the respondents, but they refused it and thereafter the village was settled with the muafidar, i.e. the appellant; and the same thing happened in the last settlement, which took place about ten years ago. The respondents were allowed to retain possession of those plots of which they were in cultivatory possession on a rental which was to ho fixed by the Settlement Officer, and they were also allowed 10 per cent, malikana on the gross rental of the village. The Settlement Officer, in an order dated 8th April 1927, said:
It is admitted on the one hand that the zamindars are not ordinary proprietors in that they pay rent, and on the other hand that they are not exproprietors in that the rent cannot be enhanced. The land in question therefore is neither sir nor exproprietary tenancy. The case is a peculiar one and the zamindar's rights do not belong to any of the classes enumerated in the Tenancy Act. The best solution it seems to me therefore is to class all their so-called sir or exproprietary holdings into one sub-class in the khatauni under the heading "hereditary cultivators" in accordance with the judgment of the assistant settlement officer, dated 1st October 1875. For the purpose of the annual statistics these holdings will be classed as exproprietary, not on the ground that they are or ever were proprietors in the modern sense--this may or may not have been the case--but on the ground that their rights are superior to those of occupancy tenants.
2. The question before us in this appeal is whether the respondents are tenants under the Agra Tenancy Act and whether they are or are not liable to ejectment under Section 79 of the Act. The trial Court held that their position was analogous to that of under-proprietors in Oudh. The lower Appellate Court was of opinion that, since they are liable to pay rent, they must be classed as tenants; and being tenants they are liable to ejectment. The learned Single Judge of this Court has taken a contrary view and has agreed with the view taken by the trial Court. As we have already said, there is a finding of fact that the respondents or their predecessors refused to accept a settlement and therefore they are "excluded proprietors" within the meaning of Section 74, Land Revenue Act. That Section provides as follows:
Any proprietor who has been excluded from settlement under Section 68, or whose share has been transferred under Section 72, shall be entitled, during the term of such exclusion or transfer....
(a) If he has no land which he would be entitled to hold, upon a transfer of his proprietary rights, as an exproprietary tenant under Section 14, Agra Tenancy Act, 3 of 1926, or Section 7-A, Oudh Rent Act, 22 of 1886, as the ease may be, to receive an annual allowance of not less than five and not more than 15 per cent, on the revenue assessed upon the mahal or share; or
(b) If he has such land, to hold it at a rent to be fixed by the Settlement Officer in accordance with the provisions of Section 14, Agra Tenancy Act, 3 of 1926, or Section 7-A, Oudh Rent Act, 22 of 1886 as the case may be, and if one-third of the rent so fixed is less than 15 per cent, on the revenue of the mahal or share, to receive such annual allowance as, when added to the one-third aforesaid, shall be not less than five and not more than 15 per cent, on such revenue.
3. Section 14 of Act 3 of 1901 deals with the creation of exproprietary rights, as did Section 10 of Act 2 of 1901, and it is clear that the respondents fall under Clause (b) of Section 74, Land Revenue Act, and must therefore be regarded as rent paying exproprietors in respect of the land which was in their cultivatory holding. In Section 50 of the earlier Land Revenue Act (19 of 1873) it was provided that:
Any proprietor excluded from settlement under Section 48 or Section 49 shall be entitled to hold his sir land as an exproprietary tenant, and the rent to be paid by him for such land during such exclusion shall be fixed by the Settlement Officer accordingly.
4. It is difficult to see how the position of the defendants is materially different from that of exproprietary tenants so far as such land is concerned. Learned Counsel for the respondents has referred us to the definition of "sub-proprietor" which was added to Section 4, Land Revenue Act, by Amending Act 2 of 1932, in which a sub-proprietor in the Province of Agra is defined as meaning "A person who possesses a subordinate but heritable and transferable right and whose name is recorded in the register of proprietors as such...", and he pleads that the respondents are sub-proprietors, as held by the learned Judge of this Court, and are not exproprietors. It seems to us that the respondents have a dual capacity in respect of this property. Qua the malikana rights of 10 per cent, on the gross rental they are sub-proprietors, and such rights will be both heritable and transferable; but qua the land which from the time of settlement they hold and cultivate, they fall under Clause (b) of Section 74, Land Revenue Act, and their position is closely analogous to that of exproprietary tenants the only real difference being that the rent which is payable by them is not liable to enhancement during the period of any particular settlement. They pay rent to the assignee of revenue, and in our opinion they are tenants within the meaning of the Agra Tenancy Act and are therefore liable to ejectment under Section 79 of the Act. Learned Counsel for the respondents has referred us to the case in Hansraj v. Baldeo Singh (1923) 10 A.I.R. All. 304, but in that case there had been no offer of settlement with the original zamindars and no refusal on their part, and therefore it was held that they were not excluded proprietors under Section 50 of Act 19 of 1873, which dealt with proprietors who had bean excluded from settlement and provided that such proprietors would be entitled to hold their sir land as exproprietary tenants, the rent payable during such exclusion being fixed by the Settlement Officer. For the reasons which we have given we are of opinion |that the respondents must be regarded as tenants holding a position analogous to that of exproprietary tenants in respect of the land which they are holding; and as such they are liable to ejectment under Section 79, Agra Tenancy Act. This being our view, we allow this appeal and set aside the judgment and decree of the learned Single Judge of this Court and restore the decree of the lower Appellate Court. The decree-holder appellant will be entitled to his costs throughout.