Gokul Prasad, J.
1. This is a plaintiffs appeal arising out of ft suit for ejectment. The plaintiffs Who are muafidar sued under Section 63 for the; efecfcrnent pf tile defendants as their tenants. The first written Btatemeu't filed by the defendants was to the effect that the defendants tad been in possession for more than twelve years and as the plaintiffs were muaftdars the defendants had acquired occupancy rights and were occupancy tenants. This was on the 6th of January 1921. A supplementary written statement was filed on the is on April 1931, in which the defendants pleaded that they were Zemindars an d as the plaintiffs were muafidars they ought to have proceeded under Section 79 of Act II of 1901, and having failed to take any such steps for 14 years the suit was liable to dismissal. They further contended that the relationship of landlord and tenant did not subsist betweet the parties and that the suit was not barred by limitation. The suit was brought in the Revenue Court and the Assistant Collector found that the relationship of landlord and tenant subsisted between the parties. He also came to the conclusion that the defendants were sub-tenants of the plaintiffs and as they had never paid rent they could be only non-occupancy tenants and had hot acquired any right of occupancy. On these findings the Assistant Collector decreed the clpim. The defendants went up in appeal and the learned District Judge 'has found that the plaintiffs are muafidars khairati, and could not be tenants-in-chief and, therefore, the defendants are not sub-tenants. The learned Jndge has further found that the defendants having been in possession for more than 12 years without payment of rent had become occupancy tenants. On this finding, he has dismissed the suit. The plaintiffs come here in second appeal and their first contention is, that the defendants haying been in possession without the consent of the plaintiffs, the plaintiffs were entitled to treat them as tenants under Section 34 and sue for their ejectment. So far as the plaint itself goes the suit has not been brought: these allegations. The learned Vakil for the appellants has referred me to a large number of rulings to show that the Board of Revenue has held that where a squatter has been in possession of a plot of land without the consent of the landlord his occupation for any nuniber of 12 years Would not vest him with the rights of an. occupancy tenant, but that occupancy; rights would commence to accrue only from, the date the squatter commences to pay rent. This is evident from the last portion of Section 34 itself and does not require any ruling in support. The question, however, about which the Board itself is not consistent is, when does the presumption arise that the possession of the tenant is without the consent of the landlord. Iii my opinion, the decision of this question would depend upon the particular facts of each case and it is not a question capable of a uniform answer. It is obvious that Section 79 of the Tenancy Act has no application to the facts of this case, because the plaintiffs are muafidars khairati and not tenants. It is also evident that the defendants, zemindars, could not have put in 12 , years necessary for the quesition of a right of occupancy because they have admittedly not paid rent, The defendants, zemindars, could not have acquired proprietary rights because there is nothing to show, that they ever asserted title adverse to the plaintiffs, the muafidars, to their knowledge. The plaintiffs have treated them a tenants by bringing this, suit for their ejectment see in this connection the case of Babu Sat Narain Prasad v. Ram Kumar Sel. Dec. No. 3 Of 1910. The defei dants beirg neither proprietors nor occupancy tenants ought to have been ejected and the decree iof the first Court should; 'not have been interfered with. I, therefore, allow, the appeal, set aside the decree of the lower Appellate Court and restore that of the pat of first instance with costs in all Courts.