JUDGMENT 1. This appeal arises out of a suit brought by the Plaintiffs to recover khas possession of 10 bighas of land which had been given in zurpeshgi to the Defendant for a term of 15 years from 1301 to 1315 F. S. The Plaintiffs alleged that Rs. 600 was stated in the deed to be the zurpeshgi; but, as a matter of fact, only Rs. 259 was paid to them, that the said amount had been satisfied out of the rent of the land fixed by the zurpeshgi pottah and that they were entitled to possession of the land and mesne profits after the expiry of the term of the lease and to the rent reserved from the year 1313 F. S. The Courts below dismissed the suit. It appears that the shares of the Plain-tiffs Nos. 2 and 3 in the land in dispute were sold in execution of a mortgage decree and purchased by two persons Mathura and Bankey. These persons were opposed by the Defendant in obtaining possession of the land. They thereupon brought a suit, to enforce their mortgage lien, against the Defendant, and, in that suit, Bhola Sahi, the Plaintiff No. 2, and Sheo Nandan Sahi, the husband of the Plaintiff No. 3, were made parties. That suit was compromised between Mathura and Bankey on the one hand, and the present Defendant on the other, and the former recognised the latter as the occupancy raiyat of the land. Subsequent to the institution of the present suit and on the 19th December 1909, Mathura and Bankey executed a deed of disclaimer in favour of Bhola and Sheo Nandan's widow (the Plaintiffs Nos. 2 and 3), but as the deed did not confer any right on them at any time previous to its execution, the learned Subordinate Judge held that it must be considered that they had no right when this suit was instituted. Having found that the Plaintiffs Nos. 2 and 3 had no right to sue, the Subordinate Judge arrived at the conclusion that the Plaintiff No. 1 was not entitled to obtain a partial ejectment to the extent of his share and that the collection in respect of his share not being shown to be separate, he was also not entitled to recover in this suit his share of the rent. The Plaintiffs have appealed to this Court. 2. The Plaintiffs have appealed to this Court. 2. So far as the Plaintiffs Nos. 2 and 3 are concerned, we are of opinion that the decree of the lower Appellate Court must be confirmed; but, as regards the Plaintiff No. 1, we think that he is entitled to get possession to the extent of his share, if there was no tenancy created by the zurpeshgi. 3. The lands in suit were given in zurpeshgi on the 3rd June 1893 at a uniform annual rent of Rs. 61-14-0 for a term of years from 1301 to 1315, the zurpeshgi being stated to be Rs. 600 and bearing interest at 8 annas per cent, per mensem to be repaid by means of the sadhawa-patawa to the Defendant. The material terms of the document are as follows :--"It is desired that the said sahib ticcadar should take possession of the said land, make proper cultivation himself or got it cultivated by others, grow indigo seeds or any other indigo crop by using the land as his khas zerait or by settling the same with tenants according to his own desire and shall continue appropriating the proceeds thereof till the term of the ticca. He shall year by year deduct the said fixed jama in payment of the principal and interest of his zurpeshgi as per account given below, and shall pay the remainder, the amount of lessor's right payable to us, towards the end of the term of the ticca on taking receipt therefor from us. He shall conveniently cut and recover the indigo crops grown and standing on any quantity of land in 1315 F. S. when the term of the ticca pottah comes to an end and shall pay 10 annas rent for 1316 F. S. at Rs. 6-3-0 per bigha and shall give up possession of the said land." It has been contended on behalf of the Respondent that a right of occupancy, at any rate, a raiyati interest was created by this pottah, and reliance has been placed upon the case of Ramdhari Singh v. M. H. Mackenzie 10 C. W. N. 351 (1905). We are of opinion, however, that the zurpeshgi pottah did not create any raiyati interest in the Defendant. In the case of Bengal Indigo Co. v. Raghubar Das I. L. R. 24 Cal. We are of opinion, however, that the zurpeshgi pottah did not create any raiyati interest in the Defendant. In the case of Bengal Indigo Co. v. Raghubar Das I. L. R. 24 Cal. 272 (1896), the Judicial Committee of the Privy Council with reference to certain zurpeshgi pottahs in that case observed as follows :-- Their Lordships see no reason to differ from the views expressed by the learned Judges of the High Court to the effect that the leases in question were not mere contracts for the cultivation of the land let; but that they were also intended to constitute, and did constitute, a real and valid security to the tenant for the principal sums which he had advanced and interest thereon. The tenant's possession under them was, in part at least, not that of cultivators only, but that of creditors operating repayment of the debt due to them by means of their security." We think that those observations equally apply to the lease in the present case. In another case, Ram Khelawan Ray v. Sambhoo Ray 2 C. W. N. 758 (1898), where the Plaintiff granted to the Defendant a zurpeshgi pottah for five years which provided that, with the exception of one rupee which was to be paid yearly to the proprietors, the whole of the rent for five years was to be taken by the zurpeshgidars on account of the profits of the zurpeshgi, that the zurpeshgi money, a sum of Rs. 499, must be repaid at the end of five years and that, if it was not so paid, the zurpeshgidars would, by virtue of the deed, remain in possession until the payment of the zurpeshgi, and the deed would continue in force until such payment, it was held that the deed did not create a raiyati tenancy, and reference was made to the Privy Council case cited above. These two cases were considered in the case of Ramdhari Singh v. Mackenzie 10 C. W. N. 351 (1905), but the learned Judges who decided that case distinguished them. The Privy Council case was distinguished on the ground that the area of the land in that case exceeded 100 bighas. These two cases were considered in the case of Ramdhari Singh v. Mackenzie 10 C. W. N. 351 (1905), but the learned Judges who decided that case distinguished them. The Privy Council case was distinguished on the ground that the area of the land in that case exceeded 100 bighas. That appears to be so; but then the Privy Council made the observations which we have already cited, which go to show that, in the opinion of their Lordships, where a lease is not a mere contract for the cultivation of the land let, but is also intended to constitute and does constitute a real and valid security to the tenant for the sum advanced, it cannot be made the foundation of a claim to a raiyati interest. The second case was distinguished on the ground that the whole of the rent was paid in advance as zurpeshgi; but, as a matter of fact, in that case a portion of the rent, though a very small amount (namely, one rupee), was to be paid yearly to the proprietor as rent and the remaining amount was to be appropriated by the zurpeshgidars. However that may be, it appears that, in the case of Ramdhari Singh v. M. H. Mackenzie 10 C.W.N. 351 (1905) the lease (which was for nine years) provided that the zurpeshgi advance was to be paid off in four years and that for the following years rent was to be paid every year, and it was found that the Defendant had been holding the land as raiyat for more than 12 years; and the case, therefore, is distinguishable from the present. We agree, so far, with the view taken in that case that a raiyat by taking a zurpeshgi lease of land of which he was previously in possession as a raiyat does not lose his raiyati status, or divest himself of his right to acquire a right of occupancy in the land. In this case, we are of opinion that, having regard to the terms of the zurpeshgi, no raiyati interest was created and that, on the expiry of the term of the pottah, the Plaintiffs wore entitled to get khas possession. It has been contended on behalf of the Respondent that the Defendant set up a raiyati interest previous to the zurpeshgi. It has been contended on behalf of the Respondent that the Defendant set up a raiyati interest previous to the zurpeshgi. It is not expressly set out in the written statement and, although there was an issue on the point, it does not appear from the judgments that any evidence was adduced upon it. Mathura and Bankey, it is true, recognised the Defendant as having rights of occupancy; but that was by a compromise in the suit to which we have already referred. The Defendant must, therefore, be taken to be a raiyat with rights of occupancy so far as the Plaintiffs Nos. 2 and 3 are concerned. The appeal of the Plaintiffs Nos. 2 and 3 must, therefore, fail. 4. The learned pleader on behalf of the Respondent, however, says that there is evidence on the record to show that the Defendant had a raiyati interest prior to the date of the zurpeshgi. Under the circumstances, the decree of the lower Appellate Court in so far as it relates to the share of the Plaintiff No. 1 is set aside and the case remanded to that Court. The lower Appellate Court will decide upon the evidence on the record whether the Defendant had any raiyati interest in the land in suit prior to the date of the zurpeshgi. If the question is decided in favour of the Defendant, the suit will have to be dismissed. If, on the other hand, it is decided against him, then the Plaintiff No. 1 will be given a decree for khas possession to the extent of his one-third share jointly with the Defendant. The Court below will also decide the question whether any rent reserved by the zurpeshgi was due to the Plaintiffs, and, if so, it will give a decree to the Plaintiff No. 1 to the extent of one-third. It will further decide the question of mesne profits to the extent of the share of the Plaintiff No. 1. As regards mesne profits, the parties will, of course, be entitled to adduce evidence. Each party will bear his own costs of this appeal. The costs of the lower Courts as between the Plaintiff No. 1 and the Defendant will abide the result.