1. These appeals arise out of two connected suits between the same parties. The first suit in which Second Appeal No. 61 of 1922 is brought was for arrears of rent under sections 34 and 102 of the Agra Tenancy Act. The second suit in which Second Appeal No. 44 of 1922 is brought was a subsequent suit for the ejectment of the defendants.
2. The defendants are purchasers of the shares of three co-sharers, Kalua, Nadir and Moti. Their purchase was made in 1909. It was a purchase of the equity of redemption subject to a usufructuary mortgage of the same land previously made by the proprietors in favour of Debi Singh and Thakria. That mortgage is still subsisting. Under that mortgage ex-proprietary, rights arose in favour of the mortgagors 'ill respect of their sir and khudkasht land. When they executed the sale-deed in favour of the defendants the vendors relinquished their ex-proprietary lands and handed over cultivating possession to the defendants. The question in dispute between the parties is whether the defendants held these lands as tenants or as khudkasht. A suit to which the present plaintiffs were parties was brought previously by the mortgagees on an allegation that the cultivation of these plots by the defendants amounted to their dispossession. The suit was dismissed on a finding that the defendants were in possession by receipt of profits from the lambardar and that the rents were collected by the lambardar and not by the co-sharers. On these facts the Courts below have, in our opinion, rightly held that the defendants are not cultivating the land as khudkhasht. The defendants not being in proprietary possession of any share it is difficult to see
how their possession can possibly be considered as khudkasht. Khudkasht can only be held by a proprietor who is in possession and the possession of the persons from whom the defendants obtained these plots was clearly that of ex-proprietary tenants. When a proprietor makes a transfer he loses his sir and khudkasht rights under Section 10 of the Tenancy Act even in the land which he has been cultivating for 12 years and becomes an ex-proprietary tenant. He obviously cannot claim khudkasht rights in land which he only begins to cultivate at the time when he loses his possession.
3. It is next argued that, if the defendants must he considered to be in possession as tenants, Section 34 does not apply as that section only applies to persons who are in possession without the consent of the land-holder. The answer to this is that the arrangement between the defendants and their vendors was arrived at behind the back of the mortgagees who were in possession of the proprietary interest.
4. Thirdly, and finally, it is argued that if the defendants are tenants at all they are tenants of the mortgagees only and that the mortgagees alone are entitled to collect rent from them. This contention was raised in the Courts below and the learned District Judge points out that all the rents in the village are collected by the lambardar that the mortgagees themselves now admit this to be the case and do not claim to collect any rents themselves, and that the finding in the previous suit to which the defendants were parties was that the lambardar alone collected. In view of the findings in the previous suit it appears to us that it would be difficult, if not impossible, for the mortgagees to bring any suit for arrears of rent.
5. The result is, that we uphold the decrees of the Court below and dismiss both appeals. We make no order as to costs as the respondent is not represented.