1. The plaintiff sought to enforce his right to possession of certain land by ejection of the defendants 1 to 3 and that the fourth defendant, the zamindar, be ordered to execute in favour of the plaintiff a perpetual lease in terms of the agreement entered into between the plaintiff and the fourth defendant who had received from the plaintiff a sum as nazrana.
2. The first Court gave him damages only.
3. The lower appellate Court gave him a decree ordering the zamindar to execute a registered lease in his favour conferring on him a right of occupancy in terms embodied in the receipt, Ex. No. 6, dated the 16th of March, 1919 and ordered that he be put in possession by ejectment of the defendants.
4. The defendants 1-3 set up their possession founding their title on a compromise arrived at in a suit for ejectment brought against thorn by defendant No. 4 but that compromise has been found to be collusive and the defendants 1-3 now fall back on the plea that the plaintiffs cannot, in any event, succeed because their own title is defective.
5. It is urged (1) that the plaintiffs were not entitled in their suit to have conferred on them by the decree of the Court a right to have a perpetual lease executed in their favour conferring on them occupancy rights; (2) that the plaintiffs asked for a declaration that they had 'occupancy rights'; (3) that the lower appellate Court has declared them to have occupancy rights; and (4) that a zamindar cannot by a deed create an occupancy tenancy. We may say at once that there has been much verbal play in the argument for the appellant with the phrases 'right to occupy' and 'occupancy rights' but there is a very real distinction.
6. Granting the fourth contention of the appellant to be correct, i.e., that a zamindar cannot create an occupancy tenancy having all the characteristics of an 'occupancy tenancy' as known to the Tenancy Act, neither of the first three will bear examination.
7. As to the second point, the claim in the first; portion of relief (a)(istahqaq haq kasht dakhilkari) that the plaintiff had 'occupancy rights' is not strictly accurate, but its real intent is made clear by the later words in the same relief 'wa niz hasb qarardad bahami mazkur-i-bala muddnilehum No. 4 ko hukm ho ki patta dawumi nisbat araziat zoil muddaee ke hag men tahrir karke registeri karadewen' by which words they pray that defendant No. 4 be ordered to execute a permanent lease in their favour.
8. As to the third point some slight ground for the defendant-appellant's contention is to be found in the remark of the District Judge that the decision in Bachchi alias Bachchia v. Bachchi (1906) 28 All. 747 'is in favour of the contention that, it is possible for a land-holder to create an occupancy tenancy by grant'.
9. But later he says 'there is nothing in the Tenancy Act which prevents a landholder from carving out a right akin to the rights of an occupancy tenant' and in his final order he did not declare the plaintiffs to have occupancy rights, i.e, to be occupancy tenants within the meaning of the Tenancy Act but merely declared them to have a right of occupancy. In that order he has held quite plainly that the plaintiffs Sure entitled to a registered lease conferring on them a right of occupancy 'in terms embodied in the receipt, dated the 16th of March, 1919'. That such a contract is not illegal is clear. See Bhola Nath Tevari v. Suraj Bali Rai (1919) 41 All. 223.
10. The wavering of the lower appellate Court between its description of a zamindar as having power 'to create an occupancy tenancy by grant' and having power 'to carve out a right akin to the rights of an occupancy tenant' is possibly duo to the language used by the learned Judge in the case of Bachchi alias Bachchia v. Bachchi (1906) 28 All. 747 to which the lower appellate Court refers, where the learned Judge says : 'He might confer on him the right to occupy the land at a fixed rate of rent, but that would only make him an occupancy tenant and not a fixed rate tenant within the meaning of the Act'. But we may note that the same learned Judge who used in Bachchi alias Bachchia v. Bachchi (1906) 28 All. 747 the words I have quoted, made his meaning quite clear in Bhola Nath Tiwari v. Surajbali Rai (1919) 41 All. 223 where in the course of the argument, ho said : ' There is a difference between making a person an occupancy tenant and conferring upon him the rights of an occupancy tenant.'
11. These two cases also further meet the first contention of the defendants that we have noted above.
12. Here it is clear that the plaintiff is entitled to a decree as prayed in relief (a).
13. The order of the Court is that the claim of the plaintiff in the relief (a) is decreed and the defendant No. 4 do execute and register in plaintiff's favour a lease giving him a right of occupancy in terms of the receipt dated 16th March, 1919, and that he be put in possession by ejectment of the defendants.
14. With the exception of the above verbal alteration, the appeal is dismissed with costs.