Kanhaiya Lal, J.
1. There is no force in the appeal. The plaintiffs sued for arrears of rent due in respect of a holding in the cultivatory possession of the defendants. The defendants were the original zemindars. They mortgaged their zemindari share with possession with one Puranmal in 1894, but they did not give him actual possession over the area under their cultivation. On the other hand it is admitted that they retained possession of it and paid rent to Puranmal for the same. Subsequently in a suit filed by Puranmal for the recovery of arrears of rent against them there was a compromise between Puranmal and the present defendants, and the claim of Puranmal was decreed for arrears of rent at a certain rate in 1913.
2. Later on the present plaintiff purchased the proprietary interest of the defendants at an auction sale, and brought a suit for the redemption of the usufructuary mortgage of 1894 and obtained a decree on the 26th July 1920, by which he was directed to pay not only the amount of the mortgage-money but also the arrears of rent due to the mortgagees from the tenant. He, therefore, acquired a right, to sue the defendants for the arrears which they were liable to pay the original mortgagees.
3. It is contended on behalf of the defendants that by virtue of the auction sale the defendants acquired ex-proprietary rights, and that no rent can be claimed from them until it has been fixed by the Collector under Section 36 of the U.P. Land Revenue Act, but the rent payable by the defendants to the original mortgagees was practically fixed by the compromise decree of 1913,and as the arrears claimed are for the period during which the mortgage was subsisting the plaintiff is entitled to recover those arrears at the rate fixed by the compromise as the successor-in-interest of the mortgagees. The appeal, therefore, fails and should be dismissed with costs including fees in this Court on the higher scale.
4. I concur with the order passed. When the defendants failed to give Puranmal possession of the land under their cultivation, as required by the usufructuary mortgage, which they executed in his favour, they must be deemed to have occupied this land without right or title. At that time there was no provision of law which gave them a right to retain possession as ex-proprietary tenants. Puranmal later on in 1913 sued them for rent although they were mere trespassers. He was entitled to do so under the provisions of Section 34 of the Agra Tenancy Act, (U.P. Act, 2 of 1901). The suit was compromised, and the defendants confessed judgment to a certain amount. This decree had the effect of changing the position of the defendants as trespassers into that of tenants for a specified rate of rent.
5. The present plaintiff then purchased the equity of redemption from the defendants, and brought a suit for the redemption of Puranmal's mortgage. Redemption was allowed, but the plaintiff was required to pay to Puranmal arrears of rent due in respect of the land cultivated by the defendants. It is not clear to me under what provision of law they were required to pay up these arrears of rent as a condition of redemption. At the same time it is clear that by paying up these arrears of rent they must be deemed to have purchased from Puranmal an actionable claim, namely, the right to recover these arrears of rent from the defendants. They are, therefore, entitled to sue the defendants. The mortgage of Puranmal was redeemed in 1920, and the suit for arrears of rent was filed in 1920 with reference to the years 1917 to 1918 onwards, so the claim would not appear to be time-barred, and no plea of limitation was raised.
6. The appellants' objection that an ex-proprietary tenancy came into existence by reason of the purchase from them by the plaintiff of the equity of redemption cannot be sustained. The defendants at the date of this purchase were not proprietors. They were only entitled to the equity of redemption. The proprietor was the usufructuary mortgagee Puranmal. It is again contended that the compromise referred to in the case brought by Puranmal against the defendant decided that the latter should pay a certain sum as interest on the mortgage and not as rent. Both Courts have decided against this plea and rightly. The suit was one for arrears of rent, and the circumstances were such as, in the light of Section 34 of the Tenancy Act, to give Purnamal a right to claim rent. The compromise must, therefore, be deemed to have been an agreement to pay rent. Where parties agree to a certain amount of rent in respect of certain past years, and one of the parties continues to retain the land, it must be deemed that he retains it on the condition of paying a similar rate of rent in future. There is no force in the grounds of appeal. The appeal, therefore, fails and is dismissed with costs including fees in this Court on the higher scale.