JUDGMENT
Ghulam Hassan, J.
1. This is the plaintiff’s appeal from the decree of the lower appellate Court arising out of his suit for enhancement of rent under Section 117, U.P. Tenancy Act. The suit was filed against several defendants but we are concerned with four defendants in the present appeal, viz., Zamin Ali, Sankata Prasad, Jafar and Raghubar Dayal, defendants 12 to 15 respectively. The defence was that the defendants were under-proprietors and hence they were not liable for enhancement of rent. This issue was remitted by the Assistant Collector, first class, before whom the suit was filed, to the Munsif. He found that the title of the defendants was established under the Settlement Court decrees passed on 24th December 1869. Exhibits A-15 and A-16 are the judgment and decree relating to Zamin Ali, Exs. A-17 and A-18 relate to Sankata Prasad and Jafar and Exs A-20 and A-21 to Raghubar Dayal, The decrees are identical in terms. A similar decree (Ex. A-22) which related to some other defendants was interpreted by Mr. Evans, Judicial Commissioner, as conferring under-proprietary rights (Ex. A.23). The learned Munsif, therefore, held that the judgment of Mr. Evans applies with greater force to the present defendants as under Section 192, U.P. Tenancy Act, it is not even necessary for the claimants to prove that they were holding for two generations as it was required under the provisions of Section 107H, Oudh Rent Act. As a result of this finding, which was accepted by the Assistant Collector, the suit was dismissed. The lower appellate Court upheld the decision. The plaintiff has preferred a further appeal to this Court.
2. It is contended here that under Section 192, U.P. Tenancy Act, it is obligatory on the part of the defendants to obtain a declaration in a separate suit that they are under-proprietors and unless they are armed with such a declaration they must be deemed to hold only as rent-free or at a favourable rate of rent. I am of opinion that, that is not the meaning of Section 192. Section 192 is a permissive section. The first portion gives a right to sue for a declaration that land held rent free or at a favourable rate of rent in Oudh is held in under-proprietary right. Sub-section (2) of that section lays down that no suit shall lie under the provisions of Sub-section (1) unless such land has been held in Oudh rent-free or at a favourable rate of rent for 50 years. There can be no doubt that the land was held rent-free or at a favourable rate of rent for 50 years and if the defendants had chosen to ask for a declaration, they would have been within their rights, but the question is whether they were bound to do so. Section. 192 does not place any obligation upon the defendants to obtain a declaration of their rights. The defendants are content to rest their claim upon the decree of the settlement (Court, dated 24th December 1869, and they are entitled to rely upon the interpretation of such a decree by Mr. Evans, Judicial Commissioner of Oudh, in ex. A-23. That the judgment, although not inter partes, is admissible under Section 13, Evidence Act, I have not the slightest doubt. Once it is admitted, there can be no doubt that its probative value is considerable. It would perhaps be profitable to quote the relevant portion of Mr. Evan’s judgment, dated 4th June 1910:
As to second point, the nature of the title acquired under the decree of 1869, the decision is more difficult. Decrees granting kabzadari rights were frequently granted in vague terms by Settlement Officers in the early period of British rule in Oudh. The rule laid down by Mr. Reid, Member of the Board of Revenue in Select Case no. 23 of 1892 (Selected Decisions of the Board of Revenue, 1883-1899, p. 261) is usually followed. In that ruling it is laid down that Kabzadari decrees do not necessarily mean occupancy rights only and that the settlement Court judgment should be carefully examined in order to ascertain the real nature of the tenure. In this particular case, it is not disputed that the land was originally granted rent-free and subsequently modified to a grant on favourable terms. It is contended for the appellants that such grants could be resumed up to 1st January 1902, the date on which Act IV of 1901 came into force and therefore on the date the respondent acquired this land he merely acquired a grant of land held at a favourable rent which could be resumed and therefore did not acquire an under-proprietary title in the land. The law in force as to resumption of rent-free grant up to 1st January 1902, is to be found in Sections 62 to 55 of Act XVII of 1876. It provides that all rent-free grants or grants of land at favourable rate of rent can be resumed except in special casts. In Section 55 an exception is made in favour of land held rent-free under a judicial decision. It is contended that although there was the judicial decision of 1869, that decision did not direct the land to be held rent-free. The law now in force is contained in Chap. 7A, Oudh Rent Act (XXII of 1886) as provided by Section 5 of Act IV of 1901 and the respondent relies on Section 107H. Section 107H provides amongst other matters that land which has been held rent free or at a favourable rate of rent since 13th February 1856 or for 50 years and by two successors to the original grantee shall be deemed to be held in under-proprietary right. It is contended that at the present moment this land has been held at a favourable rent considerably over 10 years and the facts of the case show that it must have been held by more than two successors to the original grantee therefore the land must be deemed an under-proprietary holding according to the provisions of the law now in force. Assuming, but not admitting that the land could have been resumed before 1st January 1902 it is clear that it cannot now be resumed under the law now in force and the possibility of resumption before 1st January 1902 is not material because the tenure of the respondent must be decided according to the law as in force when this suit was instituted, that is to say, on 1st August 1908.
The language of the three decrees is identical with the language of the decree which Mr. Evans was called upon to interpret. I entirely agree with that interpretation. Upon the principle of stare decisis, it must be held that the decree confers under- proprietary rights and it is unnecessary for the defendants to obtain a fresh declaration about their rights. In this view the appeal must” fail.
3. I accordingly dismiss this appeal with costs.
