JUDGMENT 1. The facts out of which this appeal arises are as follows :-Mannu Lal, plaintiff-appellant, was the thekadar of Zemindar. He sued to eject Babu Ram from the plot now in suit u/s 58 of the Agra Tenancy Act apparently on the ground that he was a non-occupancy tenant. Babu Ram pleaded that he was not a tenant at all but was a mortgagee in possession. This defence failed and the suit was decreed and Babu Ram was ejected. Then this suit was brought by Mannu Lal against Babu Ram u/s 34 of the Agra Tenancy Act to recover Rs. 114-14-6, as the rent due for the two years 1325 and 1326 Faslis, the period during which Babu Ram had occupied the land from which he had been ejected. Babu Ram raised the same plea again as he had done in the Revenue Court and added that while he had been in possession of the land from which he was ejected, no agreement for payment of rent had ever been made between the parties, nor was ever any rent formally got assessed by any Court. This plea was raised in accordance with the case of Sheo Gopal Pande v. Thakur Baldeo Singh (1911) 8 A.L.J. 1037= 12 I. C. 180. 2. The first Court decreed the suit but on appeal the learned District Judge of Cawnpore dismissed it holding that the case just cited exactly applied. 3. The plaintiff comes here in second appeal and urges that the Full Bench ruling in the case of Nandan Singh v. Ganga Prasad (1913) 35 All, 512 directly covers the case and he also quotes Kushhal Singh v. Adkaran Singh (1913) 11 A.L.J. 377 = 20 I. C. 188. On behalf of the respondent my attention has been called besides the case already quoted in 8 A.L.J, to Chhidda Singh v. Rup Ram (1911).10 I.C. 224. which was a decision of a Divisional Bench consisting of Stanley, C.J., and Banerji, J. The point really to be considered is one, I think, of fact. u/s 34 of the Agra Tenancy Act a suit will lie against a person occupying land without the consent of the zemindar. which was a decision of a Divisional Bench consisting of Stanley, C.J., and Banerji, J. The point really to be considered is one, I think, of fact. u/s 34 of the Agra Tenancy Act a suit will lie against a person occupying land without the consent of the zemindar. In this case the very first paragraph of the plaint recites : "The defendant is a mere non-occupancy tenant of the property bearing the numbers and the rent given below held under a lease granted to the plaintiff, but the rent in respect of his holding has not been entered in the capers by the patwari." The learned District Judge has found as follows: It appears from the evidence that plaintiff is a thekadar from the zemindars of the village and that defendant was admitted as a tenant before the commencement of the lease. No rent was however agreed upon between the defendant and the former zemindars. This I take to be a finding of fact and there is no ground taken in the memorandum of appeal to the effect that it is based on no evidence. In the two cases which have been cited by the appellant it will be noted that in the ILR 35 Allahabad case emphasis is placed on the fact that it was dearly established by the evidence that the defendant there was holding in spite of the plaintiff and against his will. Similarly in the case in 11 A.L.J.R. it was found that the defendant was in occupation of the land in suit without consent of the plaintiff. It seems to me that these rulings are distinguishable and the decision turns on the finding of fact which is conclusive in second appeal. The result is the appeal fails and is dismissed with costs.