JUDGMENT

Iqbal Ahmad, J. - This appeal and Second Appeals Nos. 1447 and 1448 of 1924 arise out of three suits for ejectment filed in the revenue Court by the. plaintiffs-respondents under S. 58 of the Agra Tenancy Act (2 of 1901). Babu Mahabir Prasad Singh, Plaintiff No. 1, claimed to be the fixed rate tenant of the plots in dispute, and Chaudhari Sat Narain Singh, Plaintiff No. 2, was a transferee of a portion of the holdings in dispute in each of the three suits. Jagdamba Singh and his minor son Jokhu Singh were arrayed as Defendants Nos. 1 and 2 respectively in each of the three suits, on the allegation that they were the sub-tenants of the plaintiffs. Jagdamba Prasad Singh admitted the plaintiffs' claim, but contended that his son Jokhu Singh was never in cultivatory possession of the holdings in dispute in each of the three suits, and was unnecessarily made a party to those suits.

2. The plaintiff also impleaded as Defendant No. 3 Har Shankar Singh, Badri Narain Singh and Adit Narain Singh in the three suits respectively on the allegation that they were cultivating as tenants (dar shikmi) of the sub-tenants.

3. The contest in all the three suits was between the plaintiffs and Defendant No. 3, of each suit. Their defence was that the plaintiffs were not the fixed rate tenants of the holdings in dispute; that they were in possession not as sub-tenants but as proprietors, and that the holdings in dispute were their khudkasht. Both the Courts below have overruled the pleas urged in defence by Defendant No. 3 of each suit, and have decreed the plaintiffs' suits.

4. The holdings in dispute are situated in Pargana Kaswar Raja, to which the provisions of the Agra Tenancy Act (2 of 1901) were, with certain modifications, applied by the U.P. Act, 6 of 1915. The lower appellate Court held that Plaintiff No. 1, being recorded as a fixed rate tenant of the holdings in dispute in the Record of rights prepared in 1911, should, in view of the provisions of S. 4 (4) of Act 6 of 1915, and of S. 9 of the Tenancy Act, be presumed to be a fixed rate tenant of those holdings, and further held that it was not proved that Defendant No. 3 ever paid rent to Defendants Nos. 1 and 2 or to Plaintiff No. 1, and that the relationship of land-holder and tenant did not exist between Defendant No. 3 and Defendants Nos. 1 and 2 or Plaintiff No. 1. It also held that Defendant No. 3 of each suit was in possession of the respective holdings for a period varying between 4 and 7 years, and as Defendant No. 3 of each suit was only one out of several co-sharers, the dispossession of Plaintiff No. 1 by him could not be treated as ejectment by the land-holder" within the meaning of S. 79 of the Agra Tenancy Act.

5. In appeal before me it is argued that the lower appellate Court has erred in applying the provisions of S. 9 of the Agra Tenancy Act to the cases, giving rise to the present appeals, and that the only remedy of the plaintiffs was to have sued under S. 79 of the same Act and they not having done so for a period of six months from the date of their dispossession he suits were time-barred.

6. It is provided by S. 6 of the U. P. Act 6 of 1915 that every fixed rate tenant shall, so far as is consistent with the provisions of this Act, be subject to all the provisions of the Agra Tenancy Act 1901, applicable to a fixed rate tenant as defined in that Act, Section 9 of the Agra Tenancy Act enacts a rule of evidence, and does not embody a provision to which a fixed rate tenant can be said to be "subject" within the meaning of S. 6 of the U.P. Act 6 of 1915. Moreover, that section has reference to entries in the Record of Rights prepared before the commencement of the Agra Tenancy Act, and not to the Record of Rights prepared after the commencement of that Act. In the present case Plaintiff No. 1 was recorded as a fixed rate tenant in the Record of Rights prepared in 1911, and, therefore, S. 9 of the Tenancy Act could not be invoked to their aid by the plaintiffs. But,