1. The facts out of which this and the connected Appeal No. 51 of 1912, have arisen are set out at length in our judgment in L.P.A. No. 49 of 1912. Those two appeals arise out of the two suits for rent therein mentioned.
2. We find it impossible to hold that the plaintiff-respondent is entitled to recover the rent which he claims in regard to the period of time between the two ejectments. Admittedly, no rent was fixed as between the present parties, either, by agreement or by decree of Court. Section 34 of the Tenancy Act (II of 1901 Local) clearly does not, and was never intended to, apply to the circumstances of the present case. It relates to the case of a person taking possession for the purpose of cultivating as a tenant without the consent of the land-holder.
3. Here the present appellant-defendant took possession with the full consent of the land-holders, Godha and Hamir Singh, in the year 1897. It is true that the latter, by operation of law, became the ex-proprietary tenants and have been ejected and that the appellant continued to occupy the land. Section 34 clearly does not apply.
4. Section 23 of the Act applies to the case of a sub-letting by a tenant before the commencement of the Act or a sub-letting subsequent to the Act in accordance with the provisions thereof. In the present case, there was no sub-letting prior to the Act by a tenant and there has bee no sub-letting since the Act came into force, in accordance with the provisions thereof. This section, therefore, does not apply.
5. Where the tenant has sub-let, otherwise than in accordance with the provisions of the Act, Section 29 applies. It gives the land-holder the option of enforcing or not, the covenants between the tenant and subtenant. In the present case, the plaintiff-respondent is not seeking to enforce any such covenant; nor was there any sub-letting subsequent to the acquisition by Godha and Hamir Singh of their ex-proprietary rights, unless we hold that mortgage operated as a sub-lease with effect from the date of the acquisition of ex-proprietary rights. Section 30 of the Act merely states that the interest of a sub-tenant ceases with the extinction of the interest of the tenant for whom he holds. The plaintiff does not in the present suit seek to enforce the terms of the contract between the appellant and Godha and Hamir. He puts them entirely on one side. Therefore, we can find no provision in the law which enables him to enforce, as against the appellant, the contract between himself and the ex-proprietary tenants.
6. Unless he is entitled to recover this rent by some provision of the law, in the absence of a contract, between the parties, or a decree of Court, he is not entitled to recover it.
7. For these reasons, we must hold that the suit fails. We allow the appeal. The suit will stand dismissed with costs in all Courts.