JUDGMENT
1. The dispute in this case arises out of a sale by the defendants to the plaintiffs of a 2½ biswas share out of an aggregate of 6¼ biswas on the 26th of February 1921. The plots in question ware at the time sir and khudkasht plots of the defendants. The defendants-vendors executed at the time of the sale-deed a simultaneous relinquishment of the ex-proprietary rights which arose under it. The plaintiffs took possession of the sir and khudkasht plots, but at the time of mutation of names the defendants pleaded that the relinquishment of ex-proprietary rights was invalid under the Tenancy Act and under the ruling of the Privy Council in Moti Chand v. Ikram-Ullah Khan [1917] 39 All, 173. The matter was fought up to the Board of Revenue, and the Board of Revenue ultimately by two separate judgments, dated the 15th April and 2nd May 1922, upheld the defendants’ contention and directed that their ex-proprietary right should be defined by proceedings under Section 36(1) of the U.P. Land Revenue Act. Since that order was passed proceedings under Section 36 of the Land Revenue Act have been taken and an order of the revenue Court is produced before us by which the ex-proprietary holding of the defendants has been demarcated and rent assessed upon it.
2. The order before us without examination of the different lists that were prepared doss not enable us to say whether the plots declared to be ex-proprietary holding correspond precisely with the plots now in suit, and this is not a matter which it is necessary for us to determine in this appeal. Before the proceedings under Section 36 were taken the defendants sued in the revenue Court for ejectment of the plaintiffs as sub-tenants of the plots in Sch. A which were in the actual cultivating possession of the plaintiffs and brought suits against the tenants who were cultivating the remaining plots specified in Sch. B. The plaintiffs were treated as parsons holding without the consent of the defendants under Section 34 of the Tenancy Act whom the defendants were entitled to eject. In those suits the plaintiffs set up that they were not subtenants of the plots in Sch. A but that they were proprietors in cultivating possession of these plots and that they and not the defendants were entitled to realize rent in respect of the plots in the possession of tenants. The plaintiffs were referred to the civil Court to establish their title under Section 199 of the Tenancy Act. They have accordingly brought the present suit for a declaration that they are owners in possession of all the plots in dispute.
3. Their first contention is that in spite of the proceedings for the establishment of the defendants’ ex-proprietary right which hare finally terminated in favour of the latter the plaintiffs have been in possession of the lands throughout and, therefore, the defendants’ claim must be treated as having determined under the provisions of Section 79 of the Tenancy Act. That section provides a period of six months for a tenant who has been illegally dispossessed by his landholder to recover possession. In our opinion that section is not applicable. The defendants have not been illegally dispossessed by the plaintiffs. They never obtained possession of the holding as ex-proprietary tenants. Moreover, the ex-proprietary holding did not come into existence as a defined area until proceedings under Section 36 of the Land Revenue Act were taken for its delimitation. Before that matter was decided the suit out of which the present appeal arises had already been instituted. In our opinion, therefore, the plea based on Section 79 cannot succeed,
4. Both the Courts below have refused the declaration which the plaintiffs seek. The plaintiffs are undoubtedly proprietors of the 2½ biswas share which they purchased, but no material has been laid before us on which we could hold that they are exclusive proprietors of the specific plots in suit. They certainly cannot be given a declaration that they are owners in cultivating possession, which is what they really seek, in view of the orders of the revenue Court which have been laid before us. In our opinion, therefore, the proper order to pass is an order dismissing the appeal. We accordingly dismiss the appeal with costs.
