1. The essential facts may be briefly stated as follows: On 2nd February 1899 some of the respondents, along with the predecessors-in-interest of the other respondents and some other members of their family who are dead, executed a deed in favour of one Lal Satnarain Pal Singh. By means of this deed certain land measuring 35 bighas 1 biswa 19 dhurs was granted to Satnarain Pal Singh on payment of a nazrana of Rs. 2499 for cultivation. The grantee was to pay rent at the rate of Rs. 210 per annum. The grantors covenanted that the grantee would be entitled to remain in possession 'generation after generation' and it was stipulated that the grantee would pay the annual rent agreed upon without any objection on the ground of failure of rains or on the ground of any other similar calamity. The grantors further agreed that they would have no right to enhance the rent or to eject the grantee and that the only right which they would have against the grantee would be to recover the rent fixed. It was further stated in the deed that the grantee would have rights in the land 'similar to those of a fixed rate tenant' and it was expressly provided that the executants, their heirs and their representatives
would not have the right of interfering in any manner whatsoever with the land and would have no other right than that of realizing the rent.
2. The appellants have purchased the rights of Lal Satnarain Pal Singh, the grantee. They seem to have fallen into arrear in the payment of the rent fixed and on 11th February 1936 the zamindar instituted proceedings under Section 81, Agra Tenancy Act, (Act 3 of 1926). The amount due was stated to be Rs. 436. The appellants evidently contested the claim and the application for issue of notice was therefore deemed to be a suit for arrears of rent, and the amount claimed being in excess of Rs. 200 the suit was forwarded to the Court of the Assistant Collector in charge of the sub-division who decreed it on 18th July 1936. In October 1936 the respondents applied for the execution of this decree for arrears of rent by ejectment of the appellants under Section 79, Tenancy Act. The appellants contested the application for execution by ejectment and contended that under the terms of the deed dated 2nd February 1899 they could not be ejected. The Assistant Collector overruled their contention and ordered ejectment on 6th January 1937. The appellants preferred an appeal against this order in the Court of the District Judge and their appeal was dismissed by an order dated 18th September 1937. Thereupon this execution second appeal was filed in this Court.
3. An objection had been taken in the Court of the District Judge that no appeal lay to that Court against the order of the Assistant Collector dated 6th January 1937, and a preliminary objection has been raised here that no second appeal lies to this Court. It is not necessary for us however to deal with this point in any detail because on the one hand it has ultimately been conceded by the learned Counsel appearing for the respondents that the order of the Assistant Collector dated 6th January 1937 was an order of the nature mentioned in Section 47, Civil P.C., and so an appeal did lie to the Court of the District Judge under the provisions of Section 248(3), Tenancy Act, and on the other it has been conceded by the learned Counsel appearing for the appellants that no second appeal lies to this Court in view of Section 249 of the Act. Learned counsel appearing for the appellants has however prayed that the appeal may be treated as a petition in revision and may be entertained as such. Learned counsel for the respondents at first argued that no revision can lie to this Court in a case like the present but in view of the provisions of Section 253, Tenancy Act, and of the decisions in Faqira Singh v. Pardamand Kumar : AIR1932All92 and Aisha Bibi v. Divandar Prasad : AIR1937All350 , he had to concede that a revision does lie to this Court. He has however strenuously argued that on the facts none of the grounds mentioned in Section 253 of the Act exist and that there are no grounds on which we can interfere. We shall deal with this argument presently.
4. The Courts below seem to have proceeded on the ground that the position of the appellants-applicants is that of non-occupancy tenants and that therefore an application for their ejectment under Section 79 of the Act is maintainable. It has been urged by the learned Counsel appearing for the appellants-applicants that this view is erroneous and that the position of the appellants is that of fixed rate tenants. The deed in question was executed in 1899 and the Act which was in force at that time was the N.W.P. Rent Act (12 of 1881). A tenant at a fixed rate was defined in Section 5 of that Act. The land in question is situated in a permanently settled district. But a person on whom the rights of a tenant at a fixed rate have been conferred by the zamindars by means of a deed in the year 1899 does not come strictly within that definition. At the same time, there is nothing illegal in a zamindar entering into a contract with a person and conferring upon the latter the status of a fixed rate tenant and in agreeing for valuable consideration that he would not be ejected. Such a contract is not forbidden by any law and we see no reason for holding that there is anything illegal about such a contract. That being so, the only question that arises is whether there is any justification for the zamindar in taking proceedings in direct contravention of his contract. Nothing has been said by the learned Counsel appearing for the respondents zamindars to justify the view that his clients are entitled to go back upon their contract and to eject the appellants-applicants. Reference may be made to the cases in Bhola Nath v. Suraj Bali (1919) 6 AIR All 112 and Mahesh Narain Singh v. Bisheshar Lonia : AIR1931All534 . The Board of Revenue have also held that a zamindar making a grant of land and entering into a contract of the nature with which we are concerned is not entitled subsequently to go back upon his contract and to eject the grantee: vide Bhagwan Singh v. Dwarka Rai (1915) 29 IC 677 and B. Radhey Shiam v. Budhau, 2 UD 111. It has been urged by the learned Counsel appearing for the respondent that the basis of these decisions, namely estoppel, does not apply to the facts of the present case because the appellants are purchasers from the original grantee. It is not necessary for us to consider whether the actual basis of the decisions of the Board of Revenue is correct or not. It is sufficient for our present purpose to point out that the course of decisions in the Board of Revenue also is to the effect that a zamindar in such circumstances is not entitled to take proceedings for ejectment. It seems to us however that the argument of the learned Counsel is not well founded. The respondents before us are either the original grantors or their descendants and the principle of estoppel may well be applied to them.
5. It is also noteworthy that Sec. 27 of the Act of 1881 provides that all tenants other than tenants at fixed rates and exproprietary and occupancy tenants are entitled to leases on such terms as may be agreed upon between them and the landholders. Lal Sat Narain Pal Singh not being strictly speaking a fixed rate tenant, nor obviously an exproprietary or occupancy tenant, was therefore entitled to a lease on such terms as were agreed upon between him and the landlords. For the reasons given above we are of opinion that the respondents were not entitled to take proceedings for the ejectment of the appellants-applicants. The Assistant Collector therefore had no jurisdiction to order the ejectment of the appellants-applicants. In this view of the matter this Court is entitled to interfere in revision; and to set aside the order that has been passed for the ejectment of the appellants-applicants. It has been argued for the respondents that the Assistant Collector had jurisdiction to entertain an application' under Section 79 and that this Court ought not to interfere merely because he has passed a wrong order. It seems to us however that even if the Assistant Collector had the jurisdiction to entertain the application under Sec. 79, he has clearly acted in the exercise of that jurisdiction illegally and with material irregularity. Accordingly we allow the application for revision, set aside the order for ejectment that has been passed and dismiss the application for execution filed in the Court of the Assistant Collector in October 1936. The appellants-applicants, will have their costs throughout.