Misra, J. - (1.) THIS is a defendant's appeal in a suit for recovery of possession under Sec - 183, U.P. Tenancy Act, The land of which possession was sought -plot No. 894 (area 78 acres) in village Nagwa Jairam, pirganna Karauna, district SitaPur belong -ed to Madho Singh It was held by his brother Shankar Singh as rent free muafi -Lachhmau Chamar, plaintiff, took it in cultivation from Shankar Singh in 1940. He was ejected through Court in 1944 under Section 175, DP. Tenancy Act. which provides for ejectment of non -occupancy tenants holding on a year to year basis or whose term has expired. Shankar Singh had alleged that Lachhman was his subtenant and as such a person to whom Section 175, 0. p. Tenanoy Act 'applied. The ejectment was followed by the institution of the present suit in 1915 for restoration of possession on the allegation that the ejectment was illegal. The decision depended on the answer to the question whether Lachhman's status was that of a sub -tenant or of a hereditary tenant.
(2.) THE Courts below held on the strength of two decisions of the Board of Revenue -Bhikhari v. Bam Bharosay 1931 R. D. 804 and Umed Ali v. Chandrika Singh, 1943 A.W.R. (Rey.) 73 : R.D. 166 that Shankav Singh being a muafidar was not a tenant and that Lachhman could not be deemed to be his sub tenant. They therefore found that his ejectment was illegal fend decreed the suit. Dissatisfied with the decision of the Courts below, Shankar Singh came up to this Court in second appeal. His case was heard by Kidwai J. in February, 1950 ; and in view of the importance of the legal question involved, he referred it to a Division Bench. In dealing with the argument urged before him on behalf of Shankar Singh, appellant, Kidwai J., remarked as follows : There is considerable force in the argument that persona who are entitled to the benefits of Sections 35 and 37, Oudh Rent Act are only persons who hold from landlords. A person who holds from a muafidar cannot be considered to be a tenant vis a vis the landlord and he would, therefore, not be entitled to the benefits of Sections 36 and 37, Oudh Rent Act. If he cannot claim the benefits of these sections, he would not become a hereditary tenant by force of the U.P. Tenancy Act. The question is, however, of considerable importance to a large section of the people of the province since if the view of the Board of Revenue is accepted, a muafidar Who has let out to tenants before the U.P. Tenancy Act came into force would lose all right to that land and a person who held that land as a cultivator would become a hereditary tenant liable to pay rent to the landlord. It can never have been the intention of the Legislature to deprive a muafidar of all rights. When the case was laid before us for bearing, the respondent though served remained unfortunately absent. Mr. Mahabir Pd. Srivastaya who appeared for the appellant, however, dealt with the question exhaustively and after carefully considering the law to which reference will be hereafter made, we have come to the conclusion that this appeal must succeed.
(3.) UNDER Section 3 (1), Oudh Rent Act, a landlord was defined as a person to whom an under proprietor or tenant was liable to pay rent. In other words in relation to the person on whom the liability to pay rested, the party to whom the rent was payable was given the status of landlord. A landlord thus was not necessarily the proprietor and a tenant could equally be qualified to be a landlord of a sub -tenant The definition of the word 'tenant' in sub sea. (10) of Section 3 showed that any person who is not an under -proprietor and is liable to pay rent can be a tenant. The actual payment of rent thus was, it Would seem clear, not the test of tenancy and all that was necessary was the existence of a potential liability for payment. The present definition of the word tenant in Section 3 (23) of Act 17 of l939, contains in its opening part the same conception though perhaps in some what clearer language It says that, 'tenant' means a person by whom rent is. or but for a cot tract express or implied would be, payable and, except when the contrary intention appear -includes a sub -tenant but does not include...rent free grantee.;