Gokal Prasad, J.
1. This appeal has arisen under the following circumstances:--The plaintiff brought the suit for actual possession of plots Nos. 393, 394 and 166-I against the defendants under the following circumstances. The plaintiff owned several plots of sir land. He sold some of those to one Umrao. The defendant, Mare, obtained those plots by pre-emption. It is now admitted before me that the plots sold were plots in dispute. The plaintiff now says that the defendants were his sub-tenants of plots in suit and the plaintiff got a decree against them for ejectment and obtained possession through the Court Amin on the 17th of February 1919, but that when the dakhalnama was being executed the defendants, somehow or other, got it recorded therein that there were some crops of theirs standing on the plots; that he, the plaintiff, was the ex-proprietary tenant of the land in suit and sometime ago Mare, defendant, got the thumb impression of the plaintiff on a piece of paper and now says that it is a deed of relinquishment of the plaintiff's sir rights; that notwithstanding the delivery of possession through the Court Amin on the 17th of February 1919, in execution of the decree, for ejectment passed by this Court, the defendants are interfering with the lawful possession of the plaintiff; hence this suit for actual possession. The defence of Mare, defendant, was that the plaintiff has no ex-proprietary rights in the land, that the plaintiff had relinquished his ex-proprietary rights, and that the contesting defendant was cultivating the land in dispute as owner and not as subtenant. He further alleges that the relation of landlord and tenant does not exist 'between the parties.
2. The First Court came to the conclusion that the plaintiff's ex-proprietary rights were in existence as to plot No. 160-1 but they were extinguished in respect of plots Nos. 393 and 394 because of relinquishment by the plaintiff. It held farther that the relationship of landlord and tenant was admitted between the parties, that the relinquishment took place on the 4th of February 1918, and as this suit was not brought till the 13th of August 1919, it was barred by time and that the delivery of possession to the plaintiff on the 17th of February 1919 was ineffectual because his rights as an ex-proprietary tenant had ceased to exist on that date. It, therefore, decreed the claim as to plot No. 166-1 and dismissed it as to plots Nos. 393 and 394. The plaintiff went up in appeal and the learned District Judge, came to the conclusion that, as the plaintiff's name had been struck out of the revenue papers, his suit was bound to fail. He, therefore, dismissed the appeal. The plaintiff comes here in second appeal.
3. By my order dated the 12th of July 1922 I referred the following issue to the Court below for trial as it was the point on which the decision of the case hinged, namely, 'Did the plaintiff-appellant execute the deed of relinquishment dated the 4th of February 1918, of his ex-proprietary right of his own free-will or was it obtained by Mare, defendant, from the plaintiff by exercise of fraud?
4. The learned Judge of the Court below has sent a finding which it is not very easy to understand. He holds that, while there is nothing on the record to prove that there has been any direct fraud exercised upon the plaintiff-appellant, nevertheless, the execution of the deed of relinquishment involves an act of constructive fraud. This is no finding on the evidence, and, as the District Judge admits that there was no evidence of direct fraud exercised upon the plaintiff by Mare, defendant, the finding on this issue as a question of fact ought to be in the negative. As the District Judge has not recorded a proper finding on this issue I ignore it and proceed to, arrive at a finding myself. There is no evidence on the record on the question of the direct fraud being practised on the plaintiff by Mare. No circumstances have been laid before me to show that there was any indirect fraud. Coming, however, to the legal aspect of the question I do not see on what principle the mere execution of a deed of relinquishment by an ex-proprietary tenant can amount to constructive fraud on behalf of the landlord; I, therefore, decide this issue in the negative.
5. The next and main argument advanced by the learned Advocate for the appellant is that, in order that the registered deed of relinquishment should operate as a valid surrender it was necessary that actual possession should have been made, over by the ex-proprietary, tenant to the landlord, and reliance is placed on the cases of Indar Sen v. Naubat Singh 7 A. 847 : A.W.N. (1885) 245 : 4 Ind. Dec. (N.S.) 922; Kashi Prasad v. Kedar Nath Sahu 20 A. 219 : A.W.N. (1898) 47 : 9 Ind. Dec. (N.S.) 502; Nawab Sultan Husain Khan v. Sewak Singh 27 Ind. Cas. 586 : 2 O.L.J. 11 and Shiva Tahal Ahir v. Jawahir Lal 31 Ind. Cas. 794. As there is no finding that the registered;deed of relinquishment was followed by delivery of possession it remained only an executory contract and not an executed contract and could not, therefore, be enforced as being opposed to law. This case has, become very difficult and. has given me a (sic) of anxiety. In the view that I take of the case, delivery of possession was not necessary. According to the plaintiff's case itself as put forward in the plaint the defendants were actually in possession but according to the plaintiff as sub-tenants. The fact that they were in actual possession when this deed of relinquishment was executed is nowhere decide so that in this case there was no necessity for delivery of possession because the land-holders were already in actual physical possession. This ground, therefore, must fail.
6. Another point has, however, struck me and on which I have heard the arguments of both the parties. It is this. The deed of relinquishment was actually executed during the pendency of the suit for ejectment brought by the plaintiff in the Revenue Court against the defendants as his subtenants. The defendants then, if the deed was valid, became landlords in possession and they raised this question before the Revenue Court. They were given time to have their rights as proprietors declared by the Civil Court but they omitted to do so and, later on, on the 17th of April 1918, the Revenue Court passed a decree for ejectment in favour of the plaintiff and against them. This decree was executed later on and the plaintiff was put in possession on the 17th of February 1919. It is urged that this decision of the question of sub-tenancy against the defendants bars the defendants from contending now that they have been in possession as landlords. The mere fact of the removal of the plaintiff's name from the revenue papers as an ex--proprietary tenants does not effect the question. In my opinion the decision in the ejectment suit was the decision of a competent Court and is as such binding on the defendants and they cannot now be heard to say they are landlords in possession. The delivery of possession whether actual or formal to the plaintiff in the year 1919 (there is nothing on the record to show what it was) amounted to the plaintiffs getting possession as ex-proprietary tenant, the title which he had claimed,, and the present suit being within six months from that date, was not barred by six months' rule of limitation. In this view o; the case I allow the appeal, set aside the decrees of the Courts below and decree the plaintiff's claim. As the plea on which this appeal succeeds was a poor plea of law and no further facts had to be found I allowed it to be raised in second appeal. The case seems to have been very carelessly fought out in the lower Courts. This was a point on the surface and ought to have been pressed. The parties will bear their own costs of this litigation.