- (1.) This is an appeal from the decree passed by the learned Subordinate-Judge of Budaun upholding the decree passed by a Munsif of that district in a suit brought by the plaintiff-appellant for a declaration that a sub-lease of an occupancy holding executed by defendants 3 and 4 in favour of defendants 1 and 2 is void against the plaintiff and that certain crops standing on a part of that holding,, belonged to defendants 3 and 4 and were liable to attachment and sale in execution of a decree obtained by the plaintiff against those defendants.
(2.) Defendants 3 and 4 are admittedly occupancy tenants of the lands detailed at the foot of the plaint. They were indebted to the plaintiff and also to defendants 1 and 2. All of them obtained decrees against defendants 3 and 4. The latter executed a registered sub-lease in favour of defendants 1 and 2 for a period of five years in consideration of the debts due to defendants 1 and 2. Thereupon the plaintiff instituted the suit which has given rise to this appeal for the declaration already referred to. Both the Courts below have decreed the suit on the solitary ground that the sub-lease which is in consideration of the debts due to defendants 1 and 2 was void having regard to the provisions of Section 27, Agra Tenancy Act 3 of 1926. The learned Subordinate Judge has gone so far as to hold that any crops grown by the lessees (defendants 1 and 2} should be considered to be the property of the lesser so as to entitle the latter s creditors to attach it in execution of their decree. Both the Courts below seem to have proceeded on the assumption that the plaintiff s ease rested solely on the-void character of the lease. This however was not the case, at any rate, the only case.
(3.) The Courts below are clearly right in holding that the lease executed by defendants 3 and 4 in favour of defendants 1 and 2 contravenes the provisions of Section 27, Agra Tenancy Act, and is for that reason void (S. 34 of the same Act). It should however be observed that if the sub-lease had not been in consideration of a debtor other obligation the lease would have been only voidable at the option of the land-; lord. This to my mind is the conjoint effect of Sections 28 and 34(2), Agra Tenancy Act. A lease which offends against the provisions of Section 27 and is therefore void may so far be giver effect to by the parties to it that the sub-lessee may remain in occupation and cultivate the lands sub-let to him. It is only when the landlord institutes a suit for ejectment that the sub-lessee will be deprived of possession which he obtained under the sub-lease. A possible view is that the transaction being void it is open to the lesser himself to sue the sub-lessee (under a void sub-lease) to recover possession. Such a suit may or may not be successful unconditionally. In any case, no third person can take any proceedings against the sub-lessee if possession has been delivered to him. It is not possible for the creditors of the occupancy tenant to attach the rights of the occupancy tenant in execution of a decree. The only right which his creditors can have is to attach the standing crops grown by the occupancy tenant himself. It follows that if in the case before me defendants 3 and 4 had delivered possession to defendants 1 and 2 under the sublease executed by them and defendants 1 and 2 grew crops on the land the plaintiff can have no cause of action to obtain any declaration of right. The plaintiff himself can have no right in the land even though the right of defendants 1 and 2 may be imperfect and even non-existent. A mere declaration that defendants 1 and 2 have no right can be of no avail to the plaintiff unless the law gives him a further right to obtain satisfaction of his decree by proceeding against the occupancy tenure. The crops sown by defendants 1 and 2 on the land transferred to them under a void sub-lease cannot be considered to be the property of the occupancy tenant.;