JUDGMENT

Mahmood, J. - In this case I think it is necessary to recapitulate the essential facts in order to indicate the point of law which we are called upon to determine.

2. The defendant was the owner of a twelve-ganda share of the zamindari 1 interests in a village. Out of that property he, on the 13th September 1883, executed a sale-deed as to an eight-ganda share, which he conveyed to the present plaintiff with all rights appertaining thereto, including sir-lands and sayar items, in consideration of Rs. 800. It appears, as stated by the plaintiff, that the latter, under the sale-deed, obtained possession on the 30th March 1884. It is alleged that after this the defendant ousted the plaintiff, this being the cause of the present suit. The object of the suit was the recovery of possession of the whole property conveyed by the deed, including three plots, Nos. 1021, 1026, and 1039, on the ground that these also were included in and covered by the deed.

3. The Court of First Instance framed two issues as to these plots in reference to a plea by the defendant to the effect that these plots were his sir, and chat he was entitled, u/s 7 of the Rent Act, to hold them as an ex-proprietary tenant. The Court held that out of the three plots, Nos. 1021 and 1039 were found to be the defendant's sir-lands, and that, as such, the defendant was entitled to bold possession of them as an ex-proprietary tenant. With respect to the remainder, i.e., the larger portion of the suit, the Court decreed the claim; but with respect to the two plots I have mentioned, the provisions of the statute prevailed, and the plaintiff was held not entitled to oust the defendant from possession. At the same time, as it appeared that these two plots had fruit and other trees upon them, the Court decreed the claim in such a manner as to award the plaintiff possession of those trees. The plaintiff does not appear to have appealed, but the defendant did so to the District Judge. The Lower Appellate Court has upheld the findings of the first Court upon grounds stated in the judgment, namely, that the nature of an ex-proprietary tenure does not entitle the holder to resist a claim of this kind as to the trees on the land which forms the area of that tenure. The Lower Appellate Court, therefore, affirmed the first Court's decree, and hence this second appeal has been preferred on the ground thus stated in the memorandum of appeal: "The decision of the learned Judge is against the principle of ex-proprietary tenancy-right, inasmuch as when the land in suit is sir, and is occupied by trees, the appellant had a right to retain possession of them while the trees exist." The case, as it has been argued, rests upon this single question, and my conclusion is that the contention has force and the appeal should prevail. It seems to me that the question in the case is one of first impression; that is to say, I am not aware of any decision of this or any other Court in which there is a specific ruling on the subject. I consider it my duty, therefore, to express my views as fully as may be necessary for the purpose of settling the law. In the first place, it is necessary to bear in mind the exact nature of the right of occupancy held by an ex-proprietary tenant in these Provinces. That right is regulated by Section 7 of the Rent Act, which provides as follows: "Every person who may hereafter lose or part with his proprietary rights in any mahal, shall have a right of occupancy in the land held by him as sir in such mahal, at the date of such loss or parting, at a rent which shall be four annas in the rupee less than the prevailing rate payable by tenants-at-will for land of similar quality and with similar advantages. Persons having such rights of occupancy shall be called 'ex-proprietary tenants.'" Here then is a statement in clear terms of what are to be the rights of those who, having once been owners of a mahal in whole or in part, cease to be so; and the section ends by sayin