JUDGMENT Darling S.M. 1. [September 18, 1937.]-Kanhai Lal lambardar sues u/s 44 of the Tenancy Act for the ejectment of Nokhe and Chhotey, sons of Lachhman Brahman, from a single plot No. 46, area 74 acres, situated in village Tihar Injanpur of pargana Pawayan in the Shahjahanpur district. By an order dated the 31st July, 1936, the Assistant Collector dismissed the suit this decision was upheld in first appeal on, the 2nd October, 1936, by the Collector of Bareilly, sitting with the powers of a Commissioner. The Plaintiff lambardar comes to the Board in second appeal. 2. At the settlement of 1305 Fasli this plot was recorder as the occupancy holding of Murli with Lachhman, father of the Defendants, as a sub-tenant. The next available entry is that of 1324 Fasli, in which Muali is replaced by his son Kadher as the occupancy tenant: Lachhman was still entered as the subtenant. Lachhman died some twenty years ago: he is now represented by his two sons, the Defendant Section It seems that at some un-known date Kadher disappeared from the village the recorded subtenants, namely the Defendants, claim to hold as tenants-in-chief direct from the zamindar. This Assistant Collector found that the Defendants had he'd direct from the zamindar for full twelve years by 1334 Fasli when the new Tenancy Act came into force; he therefore found that they are occupancy tenants in their own right. This decision was upheld by the lower appellate Court. 3. The only witnesses examined are the Yatwari, produced by the Plaintiff lambardar, and Durjan Singh examined by the Defendants This Durjan Singh asserts that Kadher left the village forty years ago he tries to prove too much: at the settlement which took place forty years ago, Kadher's father Murli was the recorded occupancy tenant: Kadher's name does not appear in the khatauni till 1324 F. so far as is known from the record. It is not asserted anywhere that Murli abandoned this occupancy holding. After 1324 F. twelve years had not elapsed when the new Act came into force in 1334 F: so it is quite impossible to recognize the Defendants as occupancy tenants in their own right, even if it can be shown that Kadher disappeared in or about the year 1324 F. 4. After 1324 F. twelve years had not elapsed when the new Act came into force in 1334 F: so it is quite impossible to recognize the Defendants as occupancy tenants in their own right, even if it can be shown that Kadher disappeared in or about the year 1324 F. 4. Kadher was noted in the khatauni as being ghair qabiz up to 1340 F.: in the following year 1341 F. his name was formally removed by the order of the Tahsildar, and the Defendants hitherto recorded as sub-tenants were entered as tenants-in-chief bila tasfia lagan. The present suit was instituted on the 25th March, 1936, namely, towards the end of 1343 F., for the ejectment of the Defendants as trespassers. The question is, what is the status of the Defendants? 5. Ever since the settlement year of 1305 F. the rent paid by the sub-tenants is the same as that payable by the occupancy tenant. There is no question whatsoever but that the rent has been paid by the recorded sub-tenants since the disappearance of Kadher. In these circumstances is it reasonable to treat the Defendants as trespassers liable to ejectment? On the other hand after the formal recognition of the lapse of the occupancy rights, by the removal of Kadher's name from the khatauni, there has been no new contract with the Defendants The Defendants are non-occupancy tenants without determination of rent: it is open to the Plaintiff to bring a suit for the fixation of the rent u/s 45 of the Tenancy Act, but not to eject them as trespassers u/s 44. I would modify the orders of the two lower Courts directing that the Defendants be recorded in the khatauni as occupancy tenants: they should be entered as non-occupancy tenants bila tasfia lagan. Costs should fall on parties throughout. Bomford J.M. 1. [October 4, 1937.] I hive discussed this case with my learned colleague and regret that I cannot agree with his conclusion, because I cannot see that under the law there is any half way house between declaring the Defendants in this case to be tenants, either occupancy or statutory, or trespassers If they were admitted as tenants by the landlord after the disappearance of Kadher they were admitted on the rent they were paying and I cannot agree that there was any necessity for making a new contract of tenancy. Admission implies that the contract of tenancy was complete. It doss not mean that the landlord can admit with the reservation that he can revise the rent later in certain circumstances It may be unfortunate from the point of view of the Defendants that they should lose a field that they have held so long, but they have after all been fortunate in that they have paid only the rent payable by the tenant-in-chief. I entirely agree that the Defendants cannot be regarded as occupancy tenants. 2. My own view is that they must be regarded as trespassers The evidence in the case is somewhat meagre. That of Durjan must obviously be heavily discounted. What it all comes to is that the Defendants have been recorded as sub-tenants in field No. 46 since 1305 F; that they have been paying the tenant-in-chief rent for that field to the zamindars for a long time and that from 1341 F. the entry of Kadher as tenant-in-chief was expunged by order of the Tahsildar. This in short means that not till 1341 F. were the zamindars called upon to decide the question whether they would treat Kadher's subtenants as tenants-in-chief or as trespassers My learned colleague has found, and I agree with the finding, that there is no evidence that the zamindars ever made a contract of tenancy after 1341 F. and there is nothing in the papers and little in the evidence to suggest that they ever regarded the Defendants as other than sub-tenants The fact that they were content with the rent payable by the tenant-in-chief suggests to me that they did not not admit the Defendants as tenants at any time. The Defendants are therefore trespassers and I would allow the appeal and order their ejectment with costs throughout. As Plaintiffs claim to have received rent for Kadher up to 1343 F. I would in the circunstances assess damages at twice the recorded rent, Rs. 6 in round figures. Darling S.M. 1. [October 6, 1937.]-. My tentative order dated the 18th Septembar, after hearing the parties at Bareilly was an attempt to humanize the relations between land-lord and tenant. As Plaintiffs claim to have received rent for Kadher up to 1343 F. I would in the circunstances assess damages at twice the recorded rent, Rs. 6 in round figures. Darling S.M. 1. [October 6, 1937.]-. My tentative order dated the 18th Septembar, after hearing the parties at Bareilly was an attempt to humanize the relations between land-lord and tenant. But as the result of discussion with my learned colleague, I recognize that under the present law the Defendants can only be treated as trespassers I now concur in the order proposed by my learned colleague: the appeal is allowed the Defendants will be ejected as trespassers with costs and damages as proposed.