W. Comer Petheram, C.J.
1. I am of opinion that this appeal should be allowed. The plaintiff is the zamindar of the village, and some of the defendants had an occupancy-holding in the village. They executed a document in favour of the other defendants, by which, in consideration of a particular sum of money, it was agreed that the latter should have the right of occupying and cultivating as tenants for a term of years at a nominal rent. In pursuance of this agreement, the original occupancy-tenants went out, and the persons who had advanced the money and taken the zar-i-peshgi lease, took possession, and are now in occupation and cultivation of the holding, either by themselves or through their servants. The zamindar now sues them for ejectment, alleging that they are not his tenants. The defendants plead that they have the same right as the original occupancy-tenants had. The question is, whether the zar-i-peshgi lease has given the defendants such a right, and whether the zamindar is entitled to object to that transaction.
2. The determination of this question depends on Section 9 of the Rent Act which provides that no right of occupancy, other than the right of tenants at fixed rates, 'shall be transferable in execution of a decree, or otherwise than by voluntary transfer between persons in favour of whom, as co-sharers, such right originally arose, or who have become by succession co-sharers therein.' The persons now in possession were not co-sharers with the persons from whom they obtained possession, so that the transfer to them cannot be considered a 'voluntary transfer between persons in favour of whom, as co-sharers, such right originally arose.' The question comes to this: Is this transaction the transfer of a right of occupancy? And first--What does a right of occupancy mean
3. I understand it to mean nothing but the right to live on and cultivate the land as one's own. That is what the original tenants possessed, and they have sold this right to live on the land for twenty years. I cannot follow the contention that this is not a transfer of the right of occupancy. It is a sale of that right, and therefore it is a transfer, and is prohibited by Section 9 of the Rent Act. No interest therefore passed under the transaction, and the persons, now in possession have no right, and are trespassers against the plaintiff, who is entitled to eject them. I am therefore of opinion that the appeal must be allowed with costs, and the decree of the first Court restored.
4. I am of the same opinion. I am by no means sure that the Court was wrong in holding that the document by which the sum of Rs. 500 was advanced, and the lenders placed in possession of the holding, was a mortgage in the sense of Clause (d), Section 58 of the Transfer of Property Act. It may, however, be more convenient to regard it as a lease in the sense of Section 105, which defines a lease of immoveable property as a 'transfer of a right to enjoy such property under certain special conditions,' so that, however the matter is looked at, the transaction was a 'transfer,' and must be considered a transfer of a right of occupancy; or, in other words, of a right to occupy the land in suit. Two rulings have been cited by the learned Pandit for the respondent. One of these is the case of Haji Hidayatullah v. Ram Niwaz Rai Weekly Notes 1882 p. 80 in which it was held by the late Chief Justice and Oldfield, J., that a zar-i-peshgi lease in perpetuity was not a transfer within the meaning of Section 9 of Act XVIII of 1873, the N.W.P. Rent Act then in force. It must, however, be remembered that the learned Judges who decided that case had not the provisions of the Transfer of Property Act (IV of 1882) to assist them by analogy. I confess that, looking at the terms of the judgment in that case, it appears to me that the learned Judges somewhat misapprehended the meaning of Section 8 of the Rent Act. I do not read the last sentence of that section as declaring that any occupancy-tenant may sub-let his land, but that the scope of the proviso is limited to tenants who actually occupy or cultivate land under a written lease, without having acquired a right of occupancy. In regard to a later unreported case, which was also referred to by the learned Pandit, and which was decided by Oldfield and Tyrrell, JJ., I can only say that, looking at tire provisions of the Transfer of Property Act which I have mentioned, I am not able to concur in that ruling. Under all the circumstances, I am of opinion that this appeal should be decreed with costs, and the decree of the first Court restored.
5. I concur in the judgment of the learned Chief Justice.
6. Without entering upon the discussion of the question whether the interest in immoveable property, which is described in the first paragraph of Section 8 of the Rent Act, and known as a 'right of occupancy,' is the same interest as a right to the occupation of land referred to in the last paragraph of the same section, I concur in the opinion that the document in question in the present case was unquestionably one which operated as a 'transfer,' within the meaning of Section 9.