W. Comer Petheram, C.J., Straight, Oldfield and Brodhurst, JJ.
1. It has been found that Harpal was put into occupation of this land, in 1863 as a tenant by Dhan Singh, who was the mortgagee under the deed of the 23rd May 1846, and the question is whether this land was sir when Harpal's tenancy commenced; for if it was, no right of occupancy can be acquired by him in respect of it, whether we look to the law which was in force when his tenancy began, in Section 6, Act X of 1859, or to the present law, Section 8 of the Rent Act.
2. Now, although the mortgagor held this land as his sir at the time he transferred it in mortgage, there is nothing in the terms of the mortgage-deed of the 23rd May 1846, to indicate that he transferred it to the mortgagee to be held as sir. It passed out of his own control, and was no longer held by him as sir and whether or not he intended that the mortgagee should hold it as sir, it is clear that, as a matter of fact, the mortgagee did not treat the land as sir. It ceased to be recorded as the sir of the proprietor, as had hitherto been the case, and was recorded as land held by tenants in the same way as other lands in the estate held by tenants on which a right of occupancy might be acquired, and it had been let to one Sukul Ahir in 1857 before it was let to Harpal in 1863, and not leased to them as the sir of the lessor. There is nothing in fact to show that this land retained the character of sir-land at the time it was leased to Harpal. Under such circumstances, where land, originally the sir of a proprietor, has been transferred to a mortgagee in mortgage, and has in his hands lost its character of sir and been leased to a tenant on the usual conditions of a tenancy, which otherwise do not bar the acquisition of a right of occupancy in the land, such a right will be acquired by twelve years' occupancy under Section 8, Rent Act.
3. The answer to the reference will be that Harpal acquired a right of occupancy in the land.
4. I am of the same opinion, but wish to add a few observations. There is nothing in the law to prevent a zamindar from relinquishing his rights in sir-land and converting it into land held by ordinary tenants. In this case the mortgage-deed of 1846 clearly shows that the sir right in 30 bighas including the land now in suit had been relinquished by the mortgagor who held these rights. The land was taken possession of by the mortgagee, who appears to have let it to tenants, the last of whom is Harpal (defendant-appellant), whose tenancy admittedly began in 1863. He has ever since been in possession as cultivator, and the question arises whether, even conceding that the land was originally the plaintiff's sir, the defendant has acquired the right of occupancy. I hold that the sir-land once relinquished by the zamindar ceases to have that character, and cannot prevent the accrual of the occupancy-right within the meaning either of Section 6 of the old Rent Act (X of 1859) or of Section 8 of the present Rent Act. The right of occupancy conferred by the Legislature upon cultivators of more than twelve years standing is a right wholly independent of the wishes either of the zamindar or of his mortgagee in possession, and when a cultivator acquires such a right, it cannot be taken as in the nature of a grant from either of them.
5. The right of occupancy may thus be acquired during the currency of a usufructuary mortgage and during the period of the mortgagee's possession of the zamindari rights, and the zamindar upon redeeming the mortgage cannot disturb the possession of such occupancy-tenants on the ground that, when he mortgaged the zamindari, it was free of such occupancy-tenures. Such was the rule laid down by Turner, Offg. C.J., and Ross and Spankie, JJ., in Heeroo v. Dhoree N.W.P.H.C. Rep. 1870 p. 129 and agreeing in the view therein taken, I hold that it is applicable to the present case.