1. This appeal arises out of a suit for possession of 14 blswas 6 dhurs of land in the village of Hata in the Ghazipur District. The plaintiffs are the sons of one Pema. Pema and the answering defendants jointly took a perpetual lea se of three plots of sir land with at area of 2 bighas 16 biswas at a rent of Rs. 3 a year on payment of a nazrana of Rs. 740. Pema made a deed of gift of his interest in this lease to his sons the plaintiffs. On the basis of this lease the plaintiffs filed the present suit alleging that under a private partition Pema had been in possession of 14 biswas 7 dhurs of land and that the defendants had unlawfully dispossessed him. The defendants took a plea that Pema had not paid his share of the nazrana. This plea has been found to be untrue and no longer in issue. They also allege that Pema's rights under the lease were non-transferable. This plea has been discussed by both the Courts below and is challenged in the appeal to this Court The Munsif got rid of it by holding that to transfer, though in form a lease, was reality; an out and out sale. On this view the question did not arise. The District Judge held that the document was a lease and could not be treated as any thing else. He gave effect to the defendant's plea and dismissed the suit In the meantime, however, Pema had died and it was urged before the Judge that even if Pema's rights were non-transferable they were certainly heritable and the suit should be decreed on the basis of the title which the plaintiffs had obtained by inheritance. The pleas argued in appeal before this Court raise substantially two issues:
1. Was the gift by Pema to the plaintiff a valid gift?
2. If not, should the suit have beer decreed on the basis of their title obtained by inheritance?
2. On the first issue the plaintiffs case has been put in a number of alternative forms It is first suggested that the lease should be treated as an out and out sale as held by the learned Munsif, and stress is laid on the fact that very extensive rights are conferred by the lease, including the right to sink a well or to construct a house, and that no right of re-entry is reserved. I cannot hold that these are sufficient grounds as between parties to the document for holding that the lease is anything else than it purports to be. Having regard to the small area of land involved, the rent reserved is a substantial rent and in any controversy between the parties to the lease the rights of the present plaintiffs can only be their rights as lessees under the terms of the instrument. They could not possibly claim against their lessor nor can they claim against the defendants to be treated as absolute proprietors.
3. The second contention is that they should be treated as thekedars or lessees of a proprietary interest; and the third contention is the they should be treated as fixed-rate tenants whose interest is d transferable.
4. As regards the second contention thekedars are tenants for the purpose of appplying the provisions of the Tenancy t. Act and it has even been held in Natha v. Miankhan 2 Ind. Cas. 552 : 6 A.L.J. 649 that the provisions of y Sections 23 to 30 regarding the right of sub-leasing are applicable to them.
5. As regards the thira contention the lease purported to confer on the lessees the same rights as are possessed by fixed rate tenants and it has been held in Bachchi v. Bavhcht 28 A. 747 : 3 A.L.J. 513 : A.W.N. (1906) that a fixed-rate tenancy cannot be created by contract, the reason t being that a fixed-rate tenant is defined in Section 8 of the Act and no person t can be classed as a fixed-rate tenant who does not come within the definition. The unsatisfactory position thus arrived at is due to the too rigid classification of tenants in Section 6 of the Tenancy Act the result of which is that all lessees including thekedars have to be included in the class of non-occupancy tenants. No adequate provision has been made for d lessees holding under a sub-contract and in such cases the intention of the parties is liable to be frustrated.
6. During the pendency of the suit the plaintiffs father died and their right to the relief which they claimed became absolute. 1 Whether Pema's interest was or was not transferable it was certainly heritable. As the learned Judge differed from the Trial Court as to Pema's right to transfer his interest by gift, he was asked to take notice of the new situation which had arisen and to do justice between the parties. He declined to do so on the ground that it would change the nature of the suit.
7. It is urged in support of the view taken by the learned Judge that on their father's death the plaintiffs should have applied for an amendment of the plaint. No doubt this would have been the strictly correct course to take, but they may well have considered it unnecessary in view of the Court's attitude to the technical defence put forward. The case in the Munsif's Court was fought mainly on the plea of substance, and the technical objection was brushed aside by the Munsif as totally without force. It was only when they found that the District Judge was disposed to give effect to this defence that it became necessary for the plaintiffs to urge, and they did urge, that the question lad now become immaterial. The Courts sit for the purpose of administering justice and where the rights of the patties are clear I do not think that I should to deterred from doing justice by a merely technical object of this kind. It would be absurd under the circumstances to relegate the plaintiffs to a fresh suit. It was, no doubt, suggested in argument that, possibly, if the point had been rasied in the Trial Court there might have been some additional defence which the defendants might have raised. It is difficult to conceive of any such defence, it being common ground between the parties that Pema was the plaintiff's father and that they are the persons who succeeded to his interest of his death. Counsel has been unable to suggest any such defence in this Court and none was suggested in the Court below. There is no other question in controversy between the parties as to which either of them wishes to address any argument to me. I have specially recalled them in older to ascertain this.
8. For the reasons given above I allow the appeal and setting aside the decree of the Court below restore the decree of the Trial Court. Under the circumstances I direct that the parties bear their own costs throughout.