JUDGMENT Misra, J. - This is a defendant's appeal in a suit for recovery of possession under Sec- 183, U.P. Tenancy Act, The land of which possession was sought-plot No. 894 (area 78 acres) in village Nagwa Jairam, pirganna Karauna, district SitaPur belong-ed to Madho Singh It was held by his brother Shankar Singh as rent free muafi-Lachhmau Chamar, plaintiff, took it in cultivation from Shankar Singh in 1940. He was ejected through Court in 1944 u/s 175, DP. Tenancy Act. which provides for ejectment of non-occupancy tenants holding on a year to year basis or whose term has expired. Shankar Singh had alleged that Lachhman was his subtenant and as such a person to whom Section 175, 0. p. Tenanoy Act 'applied. The ejectment was followed by the institution of the present suit in 1915 for restoration of possession on the allegation that the ejectment wag illegal. The decision depended on the answer to the question whether Lachhman's status was that of a sub-tenant or of a hereditary tenant. 2. The Courts below held on the strength of two decisions of the Board of Revenue -Bhikhari v. Bam Bharosay 1931 R. D. 804 and Umed Ali v. Chandrika Singh 1943 A.W.R. (Rey.) 73 : R.D. 166 that Shankav Singh being a muafidar was not a tenant and that Lachhman could not be deemed to be his sub tenant. They therefore found that his ejectment was illegal fend decreed the suit. Dissatisfied with the decision of the Courts below, Shankar Singh came up to this Court in second appeal. His case was heard by Kidwai J. in February, 1950 ; and in view of the importance of the legal question involved, he referred it to a Division Bench. In dealing with the argument urged before him on behalf of Shankar Singh, appellant, Kidwai J., remarked as follows : There is considerable force in the argument that persona who are entitled to the benefits of Sections 35 and 37, Oudh Rent Act are only persons who hold from landlords. A person who holds from a muafidar cannot be considered to be a tenant vis a vis the landlord and he would, therefore, not be entitled to the benefits of Sections 36 and 37, Oudh Rent Act. If he cannot claim the benefits of these sections, he would not become a hereditary tenant by force of the U.P. Tenancy Act. A person who holds from a muafidar cannot be considered to be a tenant vis a vis the landlord and he would, therefore, not be entitled to the benefits of Sections 36 and 37, Oudh Rent Act. If he cannot claim the benefits of these sections, he would not become a hereditary tenant by force of the U.P. Tenancy Act. The question is, however, of considerable importance to a large section of the people of the province since if the view of the Board of Revenue is accepted, a muafidar Who has let out to tenants before the U.P. Tenancy Act came into force would lose all right to that land and a person who held that land as a cultivator would become a hereditary tenant liable to pay rent to the landlord. It can never have been the intention of the Legislature to deprive a muafidar of all rights. 3. When the case was laid before us for bearing, the respondent though served remained unfortunately absent. Mr. Mahabir Pd. Srivastaya who appeared for the appellant, however, dealt with the question exhaustively and after carefully considering the law to which reference will be hereafter made, we have come to the conclusion that this appeal must succeed. 4. u/s 3 (1), Oudh Rent Act, a landlord was defined as a person to whom an under proprietor or tenant was liable to pay rent. In other words in relation to the person on whom the liability to pay rested, the party to whom the rent was payable was given the status of landlord. A landlord thus was not necessarily the proprietor and a tenant could equally be qualified to be a landlord of a sub-tenant The definition of the word 'tenant' in sub sea. (10) of Section 3 showed that any person who is not an under-proprietor and is liable to pay rent can be a tenant. The actual payment of rent thus was, it Would seem clear, not the test of tenancy and all that was necessary was the existence of a potential liability for payment. The present definition of the word tenant in Section 3 (23) of Act 17 of l939, contains in its opening part the same conception though perhaps in some what clearer language It says that, 'tenant' means a person by whom rent is. The present definition of the word tenant in Section 3 (23) of Act 17 of l939, contains in its opening part the same conception though perhaps in some what clearer language It says that, 'tenant' means a person by whom rent is. or but for a cot tract express or implied would be, payable and, except when the contrary intention appear-includes a sub-tenant but does not include...rent free grantee. 5. The under lined words (here italicized) were added by the Legislature in 1939 but it is noticeable that the definition of the word sub-tenant in Section 3 (22) now expressly includes persons holding land from rent free grantees This we apprehend was as stated above also the Position under the Oudh Rent Act for a rent free muafi holder was never immune from liability for fixation of rent in view of Section 107-A, Oudh Rent Act. If it be correct, therefore, that Bhankar Singh was a tenant before the passing of Act 17 of 1939 and acquired rights of a hereditary tenant u/s 29-A of the new Act, Lachhman's status at the time of his ejectment in 1944 could be that of a sub-tenant only. 6. In the cases referred to by the Courts below and in Swami Din v. Kishori Singh (1948 R D. 319) and Abdul Hameed v. Qutub (1949 R. D. 166) based on Baldeo Pande v. Sharda Prasad Singh (Select Decision No. 8 of 19l3) it was held that a maufidar's grant did act confer upon him the rights of a tenant inasmuch as the grant by its terms did not impose a duty on the grantee to pay for 'the use and occupation of the land but this if we may say so, is scarily sufficient to deprive the grantee of the right of tenancy regard being had to the muafidar's liability to pay rent if called upon to do so under the resumption chapter. There are, it is well known, only three classes of persons who occupy land in Oudh-proprietors, under proprietors and tenants. Sbankar Singh did not come in the first two categories. His case, it seems to us, could be covered only by the third class of occupiers of soil. 7. There are, it is well known, only three classes of persons who occupy land in Oudh-proprietors, under proprietors and tenants. Sbankar Singh did not come in the first two categories. His case, it seems to us, could be covered only by the third class of occupiers of soil. 7. We consider it unnecessary in this connection to enter into the further question whether the rent free grantee could be deemed to possess the rights conferred on a statutory tenant under the Oudh Rent Act till there was a fixation of rent. We are clear that as a tenant, he could sublet the land to another person on payment of rent and eject him as such. It may be added that the adoption of the contrary view which prevailed in the past in the Revenue Courts was likely to result in the muafidar not only losing all rights in the land by merely admitting a person to tenancy but also in conferring upon the rent free grantee an implied right to thrust a tenant of his choice upon the proprietor without there being a privities of contract between him and such tenant Tenancy is it need scarcely be stressed, a creature of contract and no person can be clothed with the rights and liabilities of a tenant in the absence of an express or implied intention on the part of the proprietor to confer such rights upon a person and a like intention on the part of the cultivator to undertake the liabilities. The fact that the aforesaid person is let in by the grantee and is liable to pay him rent under the contract would obviously make him only a subtenant of the person to whom he attorns. Who may mention that this was also the position under the Agra Tenancy Act of 1926 [(vide Section 3(7) J. 8. In the cases which went Up before the Board of Revenue prior' to 1926, the view which was taken was hardly consistent. In Ajita v. Gobind Prasad (Select Decision No. 10 of 1904) a cultivator under as rent free grantee was considered to be a tenant and not a sub-tenant and he was held to be entitled to acquire occupancy right after the 'apse of twelve years. In Ajita v. Gobind Prasad (Select Decision No. 10 of 1904) a cultivator under as rent free grantee was considered to be a tenant and not a sub-tenant and he was held to be entitled to acquire occupancy right after the 'apse of twelve years. The position was impossible because it was likely to bring into existence simultaneously two occupancy tenants-the grantee himself if ha qualified for occupancy rights under Chap. 7-A, Oudh Rent Act and the cultivator, who took from him. Such a case actually arose in Umrao Singh v. Gauri Shankar R.D. 181 and it had to be met by recourse to a further theory that the cultivator should be deemed to be the occupancy tenant of such muafidar but subsequently in a case where there was a conflict between the rights of these two classes of persons, the view had to be modified again. At first it became necessary to adopt the theory of elimination of the grantee (vide Lalli v. Bankey Lal (Select Decision No. 9 of 1920). Later, however, that view also had to be modified-see Gannu v. Maheshtcar Dayal 11 R.D. 559 Again in Ganga Singh v. Jamuna Prasad 1942 A.W.R. ( Rev )3l9 Ganga Singh v. Bohray Jamuna Prasad 1942. A.W.R. (Rev.) 319 : (1942 R D. 675) and Sri Thakurji Maharaj v. Balwant 1918 A.W.R (Rev) 41 a sub- tenant of the rent free grantee was held to possess the status of a statutory tenant of the proprietor but this was a view of law which was in direct conflict with the provisions of Section 37, Oudh Rent Act and Section 19 read with Section 3 (7). Agra Tenancy Act. 9. We are dear that the possession of Lachhman at the time of his ejectment in 1944 was that of a sub tenant. ID other words be was a non occupancy tenant and was rightly ejected u/s 175, U.P. Tenancy Act. "We allow the appeal, set aside the decree of the Court below and dismiss the plaintiff's suit The defendant appellant shall be entitled to get from plaintiff respondent the costs of this Court and of the Courts below.