1. This appeal arises in for ejectment under Sections 58 and 63 of the Agra Tenancy Act. The facts which are somewhat complicated are as follows. The defendant-appellant purchased at auction in 1900 the rights and interests of one Data Ram in the village Birehru. This Data Ram was the zamindar of 4 shares out of 100 shares in the village. The revenue of the village was assigned to the predecessor-in title of the plaintiff. At the settlement which preceded the settlement of 1875, Data Ram refused to accept the assessment offered by the Settlement Officer and accordingly settlement was made with the assignees of the Government revenue who were called muafidars, Data Ram and other persons similarly circumstanced being allowed a malikana allowance and permitted to continue to hold possession of their sir land. At the Settlement of 1874 and 1875 Data Ram and others asked that settlement should be made with them. The Assistant Collector refused to grant their application and by an order, dated 1st October 1875, an extract from which is given in the judgment of Mr. Ganga Sahai, dated 29th September 1898, on the record of this case, he decided as follows:
I find that plaintiffs (Data Ram and others) are not entitled to the settlement, but only to be paid a malikana allowance of 10 percent on the jamabandi as found by the Settlement Officer at the time of the settlement, the khewat showing the distribution thereof, and also to the possession of their sir holding at certain fixed rents to be determined by the Settlement Officer at settlement.
2. After the auction sale at which the appellant purchased, his name was entered as a tenant-at-will. The present suit was brought to eject him on the ground that he was a tenant-at-will. His answer was that he had a proprietary right to the land and was not liable to ejectment. The Court of Revenue in which the suit was brought had under the provisions of Section 199 of the Agra Tenancy Act, two courses open to it. It might either have required the defendant to institute a suit in the Civil Court, or it might have deter- mined the question itself. In this case the Revenue Court selected to determine the question of title and came to the conclusion that the defendant was a tenant-at-will and ordered his ejectment. This decision has been affirmed on appeal by the learned Additional District Judge.
3. The question is whether Data Ram, in whose shoes the defendant stands, had a proprietary right in the land in suit or he was an exproprietary tenant. If he was an exproprietary tenant, his right as such was not liable to sale in execution of a decree and under his auction purchase the defendant acquired no title and his possession can only be regarded as that of a tenant-at-will.
4. If, on the other hand, Data Ram had proprietary right in the land, he became an ex-proprietary tenant in respect of his sir on the sale of his proprietary rights, and the defendant can only be deemed to be his subtenant and the defendant may fairly contend, as he does, that the plaintiff has no right to sue for his ejectment. What then was the status of Data Ram in respect of the land in question? As I have said above, he did not refuse to accept the settlement and therefore, Sections 48 and 49 of Act No. XIX of 1873 did not apply and Section 50 which confers on a proprietor excluded from settlement under Sections 48 and 49 the right to hold sir land as an exproprietary tenant is equally inapplicable. Similarly Section 52 was also inapplicable; therefore, it is extremely doubtful whether it can be said, as has been held by the Court below, that Data Ram became an exproprietary tenant under Section 50 of Act No. XIX of 1873. However, upon his being excluded from settlement and allowed a malikana allowance in recognition of the proprietary rights which he originally held, ho lost his proprietary rights and became the exproprietary tenant of the sir land which he held as proprietor. It was clearly understood by the Assistant Collector when he made the order of 1st October 1875, that his status was to be that of an exproprietary tenant within the meaning of the Rent Act No. XVIII of 1873. As Data Ram was in this view an exproprietary tenant, the defend-ant did not acquire under the auction purchase of the rights and interests of Data Ram his rights as an exproprietary tenant and can only be deemed to be a tenant-at-will. The Court below was, therefore, right in upholding the order for his ejectment and this appeal must be, and it hereby is, dismissed with costs.