Ghulam Hasan, J - (1.)These appeals filed by the defendants arise out of suits under Section 117, U.P. Tenancy Act, for enhancement of rent. The defendants are treated by the plaintiff-respondent as occupancy tenants, The defence was that the defendants are not occupancy tenants and there. lore their case is not covered by Section 117. Both the lower Courts have rejected the defence and have decreed the suit. The only question arising for determination in these appeals is whether the decision of the Courts below that the case is covered by Section 117, U.P. Tenancy Act is correct.
(2.)It is not denied that the title which the defendants have put forward arise under a decree of the Settlement Court dated 24 December 1869, passed in favour of the defendants ancestor. The decree, Ex. A-2, "shows that the defendants ancestor was not regarded as an occupancy tenant within the meaning of Section 5, Avadh Rent Act, but he was still granted qabzadari rights. It is argued before me that the defendants must be taken to be holding under the decree of Court within the meaning of Section 71, Avad Rent Act of 1886. Reference is made to two decisions of the Board of Revenue reported in Chhedi Tewari V/s. Shah Hayat Ahmad 33 I.C. 156 and Syed Lutf Ali V/s. Ramlal and Ors. 33 I.C. 786, in support of the contention that the rent of the defendants cannot be enhanced under Section 33, Avadh Rent Act. This is undoubtedly so, but Section 117, U.P. Tenancy Act, is much wider in scope than Section 33, Avadh Rent Act. It lays down that the rent of a tenant, other than a permanent tenure-holder or a fixed rate tenant, shall be liable to enhancement under this Act. Whether Section 117 is applicable to the present case would appear to follow from the provisions of Section 25, U.P. Tenancy Act, which lays down that: Every tenant in Avadh holding under judicial decision made or passed before the passing of the Avadh Kent Act, 1886, shall be called a tenant holding on special terms and subject to the terms of such agreement or decree, and save as otherwise expressly provided in this Act, shall have all the rights and be subject to all the liabilities conferred and imposed upon occupancy tenants in Avadh by this Act. The latter portion places the tenants holding on special terms, such as the defendants are in virtue of the decree of Court, under all the liabilities imposed upon occupancy tenants in Avadh. The occupancy tenants are defined in Section 28, and by force of Section 117, all occupancy tenants and tenants holding under special terms must be subject to the liability for enhancement of rent. This view is confirmed by a decision of the Board of Revenue in Raja Ajit Pratap Singh V/s. Ram Lal 1943 R.D. 555. It was there laid down: Undoubtedly under the Avadh Rent Act the rent of a tenant holding under special terms on the basis of a settlement Court decree was not liable to be enhanced under Section 33, Avadh Bent Act. But this disqualification does not exist now under the provisions of the U.P. Tenancy Act. I am satisfied therefore that the decision of the Courts below that Section 117, U.P. Tenancy Act, as applicable to the case is perfectly correct.
(3.)The appeals fail and are dismissed with costs.