1. This appeal is without substance. The suit which has given rise to it was brought by the respondent for recovery of three years' rent on the basis of a 'Qabuliat' executed by the appellant, who had on the date of the 'Qabuliat' also executed a deed of usufructuary mortgage in favour of the plaintiff in respect of the land covered by the 'Qabuliat.' The transaction was not at all of an uncommon character.
2. The mortgagor agreed to continue in possession as a 'thekadar' and to pay a certain rent to his own usufructuary mortgagee. The 'Qabuliat' was not registered. The argument put forward on behalf of the 'thekadar' is that, in the absence of a registered lease executed by the lessor, no relationship of lessor and lessee could come into existence. This contention may be right; but it is not enough to defeat the plaintiff's claim. It cannot be disputed that the parties fully intended to enter into a transaction of usufructuary mortgage. Symbolical possession, was delivered by the mortgagor to the mortgagee. The mortgagor there and then changed the character of his own possession. He parted with his possession as proprietor and entered into possession as a 'thekadar' and agreed to pay rent amounting to Rs. 121 a year besides land revenue Rs. 16-4-6. Technically the relationship of lessor and lessee might not have come into existence; but it is conceded that the plaintiff is entitled to compensation for use and occupation of the land. If the plaintiff's suit be treated as one for compensation for use and occupation, there is no difficulty in decreeing it. The amount of compensation being agreed upon between the parties, no further proceeding is necessary, as the plaintiff's suit can be decreed straight: away. The only difference which is not one of substance, is that the amount awarded to the plaintiff should not be termed 'rent' but as 'compensation' for use arid occupation. The learned advocate for the appellant contended that if the suit be treated as one for compensation for use and occupation of land, the Revenue Court, in which it was instituted, had no jurisdiction, as a suit of this nature is cognizable by a civil Court. He also, pointed out that this objection was taken from the very beginning. Even so, Section 269, Agra Tenancy Act, clearly covers the case. The District Judge had all the materials before him for the final disposal of the suit, and so have I. The contention put forward on behalf of the appellant so far as it is based on the absence of a registered lease has therefore no substance.
3. The advocate for the appellant also contended that the 'theka' was not given effect to, as no rent was ever paid by the defendant to the plaintiff. It is also stated that the defendant is entitled to possession of the land which is the sir of the mortgagor, he being entitled to exproprietary rights which accrued on the execution of the deed of usufructuary mortgage. No rent has been assessed under Section 36, Land Revenue Act; and if any is assessed, it will be payable to the defendant himself, who is the 'thekadar.' In any case, the de fendant cannot escape his liability to pay rent in terms of his own agreement in the 'Qabuliat.' The appeal is dismissed under Order 41, Rule 11.