1. These are two connected appeals in a suit for arrears of rent under Section 102 of the Agra Tenancy Act. The suit has been decreed by both the Courts below and the defendant appeals. On 16th July, 1909, the defendant executed a usufructuary mortgage in favour of the plaintiffs of an eight-annas share in the village of Mirpur Gaindiwar, mahal Daiyan Sadarang. It is in respect of this share that the present suit for arrears of rent has been brought. On the same date the mortgagees gave a theka of the share to the mortgagor on a rent of Rs. 210 per annum. No written lease was executed but the defendant executed a registered kabuliyat stating that he had taken the zamindari share, the area of which was 101 bighas on a lease from the plaintiffs and agreeing to pay the rent. Application for mutation was made to the Revenue Court and the defendant was duly entered in the khewat as thekadar and the plaintiffs as lessors in respect of the theka. It appears from the evidence of the patwari, who was the only witness examined, that the defendant who has admittedly been in possession, paid rent under the theka up to the year 1912.
2. The defence to the suit which was put forward in the Courts below and is repeated in the grounds of appeal is:
1. That no tenancy was created by means of the kabuliyat and therefore the defendant cannot be sued for rent. In this written statement he declared that he had paid the Rs. 210 a year now claimed up to data not by way of rent but by way of interest on the mortgage.
2. That as part of the land covered by the lease was sir land no rent could be claimed in respect of this portion of the area covered by the lease until rent had been determined under Section 36 of the Land Revenue Act, which admittedly was not done.
3. That in any case the Courts below should have found whether a portion of the rent payable in respect of the 35 bighas sir land is less than the statutory rate prescribed by Section 10 of the Tenancy Act.
3. It appears to us that it is not necessary in this casa to go into the first question whether the tenancy can be created by means of a registered kabuliyat or not. The case is covered by the Full Bench ruling in Sheo Karan Singh v. Maharaja Parbhu Narain Singh (1909) 31 All. 276. The defendant took possession of land under a lease and paid rent for at least three years in accordance with it and even if the kabuliyat did not constitute a valid tenancy the defendant is liable under the ruling just referred to pay compensation for the use and occupation of the land, the measure of that compensation being the amount which he agreed to pay under the lease. Moreover in this case, as the defendant himself applied for mutation of names and got himself entered as thekadar and the plaintiffs as lessors the plaintiffs are entitled to rely on the presumption laid down in Section 44 of the Land Revenue Act, that the relation of landlord and tenant does exist between the parties. There is nothing to rebut that presumption. On the contrary there is a good deal to confirm it.
4. To the contentions regarding the sir area there are two answers. In the first place, as this lease was undoubtedly a theka of the zemindari share the case is covered by the ruling in Mithan Lal v. Chhaju Singh (1918) 40 All. 429, on which the learned District Judge has relied. In the second place it has been held in more than one case that if the rent agreed on between the parties for land in respect of which an ex-proprietary tenancy has arisen is less than the statutory rate laid down in Section 10 of the Tenancy Act the rant is claimable even though formal proceeding under Section 36 of the Land Ravenue Act have not been taken. In the present case the respondents' Counsel has been able be show from the evidence of the patwari, who was the sole witness, that the portion of the rent due in respect of the sir area is less than the amount which could have been fixed under Section 36 of the Land Revenue Act. The decree of the Court below is therefore correct and we dismiss these appeals with costs including in this Court, fees on the higher scale.