1. This case raises rather an interesting point. The facts do not clearly appear from the judgment of the lower appellate Court. In so far as it is necessary for the point that has arisen for decision the facts are that Abhai Ram, Khubi and Nanak were proprietors of Mahal Badam and plot No. 1100 was a sir plot in that mahal which was in their possession. Din Dayal was the proprietor of another mahal. Mahal Niadar, and plot No. 609 was a sir plot in that. mahal. The proprietors of Mahal Badam and Mahal Niadar decided by an oral exchange that Din Dayal should get possession of plot No. 1100 in Mahal Badam and Abhai Ram, Khubi and Nanak of plot No. 609 in Mahal Niadar.
2. The first point for consideration is what was the position of Din Dayal as a result of this exchange qua this plot No. 1100 which was the sir of Abhai Ram and others and was situated in Mahal Badam in which he was not a cosharer. The appeal before me is confined only to this plot No. 1100. Mr. Chandra Bhan Agarwala appearing for the appellants has argued that Din Dayal must be deemed to be a tenant. He was let into cultivatory possession of the plot by the proprietors and but for the contract under which he put Abhai Ram and others into possession of plot No. 609 he would have had to pay rent. His position, therefore, would be that of a non-occupancy tenant. There is not much dispute up to this point, though Mr. Jagnandan Lal has strenuously argued that the possession of Din Dayal of plot No. 1100 should not be as a tenant at all but as a proprietor.
3. On 28th July 1932 Abhai Ram and others executed a possessory mortgage of the zamindari share and entered into a contract with the mortgagee to surrender their ex-proprietary rights. Mr. Chandra Bhan Agarwala has drawn my attention to para. 3 of the plaint in which it is mentioned that the sir rights were surrendered on 28th July 1932, the date of the mortgage. Mr. Jagnandan Lal, on the other hand, has drawn my attention to Section 14, Agra Tenancy Act (3 [III] of 1926), that exproprietary tenancy arises immediately on the transfer and the surrender cannot be effected without the sanction of the Court, and he relies for his contention that the mortgagors became ex-proprietary tenants for several months after the mortgage on the fact that the application for sanction was filed on 20th September 1932 and was granted on 28th November 1932. According to Mr. Jagnandan Lal, Abhai Ram and others became ex-proprietary tenants of plot No. 1100 on 28th July 1932, the provision of Section 14, Agra Tenancy Act of 1926, being mandatory, and such tenancy rights were not extinguished till the order dated 28th November 1932. Mr. Jagnandan Lal contends that as a result, during this period, Din Dayal became a sub-tenant of ex-proprietary tenants and under Section 47, U.P. Tenancy Act, the rights of the sub-tenants were also extinguished on the extinction of the ex-proprietary rights and after 28th November 1932 Din Dayal remained in possession of the land as a trespasser and the Court was entitled to eject him under Section 175 of the pew Tenancy Act, 1939. Mr. Chandra Bhan Agarwala, while conceding that if after the ex-proprietary tenancy had arisen Din Dayal would have become a sub-tenant and the position would have been as Mr. Jagnandan Lal stated, has very ingeniously argued that where, as in this case, it is admitted in the plaint that the exproprietary tenancy never arose and the sir rights were given up on the date of the transfer it could not be said that Din Dayal became a sub-tenant and it must be held that he remained all along a non-occupancy tenant. He has cited before me a case of the Board of Revenue reported in Parmeshar Ahir v. Balrup Ahir ('36) 1936 R.D. 13, while Mr. Jagnandan Lal has relied on Dharmdeo Chaube v. Prag. ('33) 17 R.D. 464. I do not want to discuss these cases but to confine myself to the language of the statute. To my mind; the language of Section 14, Agra Tenancy Act, is very clear. It says that every landlord whose proprietary rights in a mahal are transferred shall become a tenant with a right of occupancy in his sir, and under Section 15 this right can be extinguished, as in this case, with the sanction of the Assistant Collector. So long as sanction is not obtained, the landlord must be deemed to be an exproprietary tenant. So far as I can find, there is no provision in the Tenancy Act that when a sanction is granted it must date back to the original date of the agreement between the landlord and his ^transferee. This makes a great deal of difference in the rights of the parties because if Din Dayal became a sub-tenant, under Section 47, U.P. Tenancy Act, his rights came to an end on the date of the surrender and after that he held the land as a trespasser. If, on the other hand, he was a tenant, then under Section 29, U.P. Tenancy Act, he would be deemed to be a statutory tenant and therefore not liable to ejectment. 'As I read Sections 14 and 15, Agra Tenancy Act, which was the Act in force in the year 1932, it seems to me that on the date of the transfer Abhai Ram and others became exproprietary tenants of plot No. 1100 and Din Dayal, therefore, must of necessity be deemed to have become a sub-tenant and when Abhai Ram and others surrendered their exproprietary tenancy Din Dayal's rights as a subtenant also came to an end under Section 32, Agra Tenancy Act, 3 [III] of 1926, and on the date when this Act (U.P. Tenancy Act, 1939) came into force Din Dayal who was in possession of the land was only a trespasser and not a tenant and he cannot, therefore, take advantage of Section 29, U.P. Tenancy Act, 1989.
4. There is one more point. The mortgagee from Abhai Ram and others filed a suit No. 47 of 1936-37 in the Court of the Assistant Collector against Din Dayal for possession of plot No. 1100. The matter was referred to arbitrators and before the arbitrators there was a compromise in which it was held that by reason of the exchange Din Dayal had become owner of plot No. 1100 and the plaintiff mortgagee was entitled to get possession of plot. No. 609 and his suit for possession of plot No. 1100 was dismissed as a result of that compromise. When the plaintiff, however, filed a suit for possession of plot No. 609, Din Dayal went back on the compromise and resisted his possession of plot No. 609 on the ground that the exchange was invalid. This plea of his succeeded and the plaintiff's suit for possession of plot No. 609 failed. He on the failure of that suit filed this third suit for possession of plot No. 1100 on the ground that Din Dayal having repudiated the exchange he was no longer bound by the same and was entitled to possession of plot No. 1100. Mr. Chandra Bhan Agarwala has urged that the compromise in Suit No. 47 of 1936-37 operates as res judicata. Apart from my view that there can be no res judicata, under the circumstances stated above, this plea was decided against the defendants by Mr. D.N. Roy long before and his decision was not appealed against. This plea of res judicata was not taken in the Court below. I do not think it is now possible for the defendants to raise the plea here. On the whole, after having carefully considered the case, I am of opinion that the plaintiff's suit was rightly decreed. I, therefore, dismiss this appeal with costs.