Mohammad Hanif and Another vs Khairat Ali and Others

Meredith, J.

(30th October 1939.) This is an appeal from a decision of the Additional Subordinate Judge of Hazaribagh, dated 30th November 1937, affirming a decision of the Munsif of Giridih, dated 7th September 1936.

The appeal is by defendants 2 and 3, and the suit, which was decreed by both the Courts, was, for declaration of the plaintiff''s title as a raiyat and for recovery of possession with mesne profits of 2.85 acres of paddy land bearing survey plots Nos. 856, 855 and 859 of khata No. 10 situated in mauza Girnia.

The facts so far as they are now material may be stated as follows. Baja Sarda Narain Singh, proprietor of Serampur estate, acquired the khorposh rights in village Girnia by purchase at an auction sale in 1908. After his death in 1908 a succession suit (No. 112 of 1908) was instituted by his uncle Nilkantha Narain Singh against his widow Rani Jagdamba Kumari in respect of all the Raja''s properties comprised in Gadi Serampur. That suit was decreed on 18th September 1911 by the Subordinate Judge of Hazaribagh, and Nilkantha on the strength of his decree took out delivery of possession on 1st May 1912, It appeared however that the late Raja had never obtained possession of Girnia by virtue of his purchase. Nilkantha. therefore brought a title suit (NO. 156 of 1914) against the khorposhdars for khas possession of Mauza Girnia. That suit was-decreed on 27th February 1915, and Nilkantha took delivery of possession on 20th May 1915 (decree Ex. 10.P). After that, Nilkantha''s son Wazir Narain Singh, who on his decease had been substituted in his place in the litigation, gave a mukarrari lease on 26th May 1917 to Daud Ali, who was originally defendant 1 in the present suit. Daud Ali in his turn granted two hukumnamas in 1920 (IIth of Baisakh 1827 Fs.) in the names of his three sons purporting to give them'' raiyati settlements of all the bakast lands in the village, including the lands in suit: these three sons are defendants 2, 3 and 4 in the present suit.

After the decree of the Subordinate Judge in the suit of 1908 the Rani appealed to the High Court, and in the High Court the decree of the original Court was modified. Prom the High Court decree the Rani appealed to the Privy Council, and there she was successful to the extent that by the decree of the Privy Council, dated 20th December 1922, her right was declared to all the self acquired properties of her deceased husband. In obedience to the decree of the Privy Council the Subordinate Judge issued writs of delivery of possession, and the Rani obtained delivery of possession of all the self acquired properties, including the khorposh rights in village Girnia, on 5th October 1923, by way of restitution u/s 144,. Civil P.C. A petition by Wazir Narain Singh u/s 47 and Order 47, Rule 1, Civil P.C., objecting to the restitution, was rejected on contest. According to the plaintiff in the present suit the Rani after taking khas possession of the bakasht lands of Girnia, made a raiyati settlement of the lands in suit with him by a hukumnama dated 21st Chait''1881 Fs. (1924), and the plaintiff came into possession by virtue of this settlement. Subsequently, the Rani gave the village in rehan to Khagpat Ram and others, and after that the plaintiff used to pay the produce rent to the rehandars. When the rent fell into arrear, these rehandars brought-a rent suit (No. 379 of 1933) against the plaintiff. The suit was decreed and the-decree was put into execution. The plaintiff came to deposit the decretal amount, but found that the defendants had filed an objection in the execution case and had deposited the decretal amount in Court.

After their objection had been allowed and the execution case dismissed on full satisfaction the defendants emboldened by that decision dispossessed the plaintiff from the lands in suit in Sawan 1341 Fs. The plaintiff''s case was that the mukarrari in favour of Daud Ali and Daud All''s raiyati settlements with his sons were vitiated by the doctrine of lis pendens u/s 52, T.P. Act, and were also fraudulent and collusive ; he was therefore entitled to recover possession.

The defendants, on the other hand, contended that they had acquired the status of occupancy raiyats, and as such could not be ejected; that the Rani had never obtained possession, and that the settlement with the plaintiff was collusive. They further stated that, as they had been in possession of the lands for more than twelve years, the claim of the plaintiff was in any case barred by adverse possession. Defendant 1 Daud Ali died after the written statement had been filed, and in his place his heirs, including defendants 2 to 4 already on the record, were substituted. Subsequently all the defendants, except defendant 3 Hanif, filed petitions, dated 28th February 1936, admitting the title of the plaintiff to the lands in suit, and relinquishing unconditionally all their rights thereto. The suit was however contested at the trial by defendant 3.

The learned Munsif held that the Rani had obtained khas possession in 1923, and had made a bona fide settlement with the plaintiff who acquired possession thereunder, and that the Rani was entitled to make the settlement as she had acquired a good title under the restitution proceedings. He held that Daud Ali''s lease and the raiyati settlements with his sons were invalid as having been made pendente lite, and that Daud Ali in purporting to make raiyati settlements of all the bakasht lands of the village with his own sons upon inadequate rent was not acting bona fide, and the transaction was collusive and designed to save his own interest in the event of the Rani succeeding in the Privy Council. There was no question off limitation, as even if the defendants had been in possession since 1920 their possession would become adverse only after delivery of possession to the Rani on 5th October 1923, and the suit had been instituted within twelve years of that date. His finding of fact however was that actually the defendants had been ousted from, possession by the Rani in 1923.

Finally he noticed the fact that two of the defendants, who had filed petitions admitting the plaintiff''s claim, were brothers of the contesting defendant 3 who had jointly taken settlement with him of the lands in suit under the hukumnama (Ex. C). The learned Subordinate Judge affirmed all these findings1 except that of plaintiff''s possession and, dispossession. He was of opinion that the plaintiff had never obtained possession, though the Rani had obtained possession by taking delivery of possession in 1923,: and had consequently the right to grant a; raiyati settlement to the plaintiff.

The plaintiff''s lease, being unregistered, was inadmissible in evidence and oral evidence as to its terms was excluded u/s 91, Evidence Act. But the existence of the tenancy could nevertheless be inferred from the fact that the rehandars had treated the plaintiff as raiyat of the suit lands and had obtained a decree against him for rent, and those rehandars were admittedly in possession. He was of opinion that the raiyati settlement with the defendants under Ex. C was not made in good faith and they had acquired no occupancy status.

It may be observed in the first place that so far as defendant 2 is concerned the appeal must in any event fail, as the suit was decreed against him on confession. The points which have been urged on behalf of defendant 3 are, first, that the raiyati settlement with him in 1920 by his father ought to be held good, and he thereby became a raiyafc and acquired an occupancy status and cannot be ejected; secondly, even if the defendant''s title is not good the plaintiff cannot succeed without establishing his own title. This he has failed to do, because it has not been proved that he obtained a raiyati settlement from the Rani. The hukumnama was inadmissible in evidence. Section 91, Evidence Act, barred oral evidence, and the tenancy could, not be inferred from demand and acceptance of rent because the plaintiff was never in possession according to the finding of the lower appellate, Court. Moreover, the plaintiff''s lessor, that is to say the Rani, had herself no good title. Her own title to mauza Girnia became: extinguished u/s 28, Limitation Act, read with Article 138 when she had failed to sue the khorposhdars within 12 years of the auction purchase in 1903. Her title having lapsed and Nilkantha having acquired mauza Girnia, not under the decree in the suit of 1908 but by virtue of his own decree against the khorposhdars, the Rani could not be given any valid title to mauza Girnia by way of restitution u/s 144, Civil P.C. Nilkantha in suing the khorposhdars could not be held to have represented the Rani so as to prevent the extinction of her title under the provisions of Section 28, Limitation Act.

The argument that the appellant acquired an occupancy status is based on the principles laid down in the old Full Bench ruling in Binad Lala Pakrashi v. Kalu Pramanik (93) 20 Cal. 708, where it was held that a raiyati settlement is good against the rightful landlord, even if made by a trespasser in possession, so long as it is made bona fide; and it is said that in such a case the only necessary test of bona fides is the question of the lessor''s possession. That proposition appears to me quite incorrect. On the contrary what was laid down in that case was that the tenancy right must be one bona fide acquired by the lessees from one whom they bona fide believed to have the right to let them into possession of the land.

The principle in Binad Lala Pakrashi v. Kalu Pramanik (93) 20 Cal. 708, was approved by the Patna High Court in Sheogobind Ram Sahu v. Mahipat Dusadh AIR 1924 Pat. 207, but there again stress was laid on the necessity of bona fides.

In Krishna Nath v. Mohamed Wafiz AIR 1916 Cal. 598 it was held by the Calcutta High Court that in order to make the principle in Binad Lala Pakrashi v. Kalu Pramanik (93) 20 Cal. 708, available, it is essential that the lessor should be in possession of the disputed property as de facto landlord, and that in good faith he should have inducted into the land a cultivator who had accepted the settlement in good faith. It is clear therefore that complete good faith is necessary on both sides, whereas in the present case there is an express finding that the settlement was collusive and made in bad faith by Daud Ali to provide a second string to his own bow in case his mukarrari lease proved invalid. Indeed the fact that Daud Ali, soon after obtaining his lease and during the pendency of the appeal in the Privy Council, made raiyati settlements of all the bakasht lands of the village with his own sons upon very low rental, speaks for itself.

Even, however, could it be held that the settlement was made in good faith on both sides, good faith on the part of Daud Ali, and good faith on the part of his sons, the settlement would, in my opinion, still be invalid as being made pendente lite. It has been held in Madan Mohan Singh v. Raj Kishori Kumari AIR 1917 Cal. 222 that the principle in Binad Lala Pakrashi v. Kalu Pramanik (93) 20 Cal. 708, should not be extended so as to affect the application of the doctrine of lis pendens, and that Section 52, T.P. Act, cannot be frittered away by the application of the doctrine recognized in that case.

It is of course well settled that the principle of lis pendens extends right to the conclusion of the litigation including the appellate stages and the execution proceedings: Ghanshyam Das v. Ragho Singh AIR 1931 Pat. 64 and Moti Chand and Another Vs. British India Corporation Ltd. and Others . Turning now to the second contention, it falls under two heads: first, that the plaintiff''s lessor, that is to say, the Rani, did not acquire any good title herself in the restitution proceedings, and therefore could not convey any title to the plaintiff; second, that this being a suit in ejectment, the plaintiff must prove his own title, and cannot succeed upon the weakness of the defendants'' title; but as it has been found that he never got possession, he has not succeeded in proving that he is the Rani''s lessee and consequently entitled to sue.

With regard to the first question, the lower Courts were, in my opinion, correct in holding that the Rani had acquired a good title by way of restitution. It is perfectly true that this finding necessitates an extension of the principle of restitution beyond anything to be found in any of the rulings which have been cited at the bar. But such extension, in my opinion, is in accord with principles already laid down in several rulings, is in accord also with justice, equity and good conscience and if not strictly speaking covered by Section 144, Civil P.C., is within the competence of the Court by virtue of the inherent power which it possesses in such cases. This inherent power of the Court has been noticed by the Privy Council in Jai Berham v. Kedar Nath Marwari AIR 1922 P.C. 269. I may quote the observations of Lord Carson in that case:

It is the duty of the Court, u/s 114 (Section 144), Civil P.C., to ''place the parties in the position which they would have occupied, but for such decree or such part thereof as bag been varied or reversed.'' Nor indeed does this duty or jurisdiction arise merely under the said section. It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all the parties involved. As was said by Cairns L.C. in Rodger v. Comptoir d� Escompte de Paris (1871) L.R. 3 P.C. 465, one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors, and when the expression ''the act of the Court'', is used, it does not mean merely the act of the primary Court or any intermediate Court of Appeal, but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case.

Similarly in Hemendra Chandra Mullick v. Ballavi Devi AIR 1933 Pat. 564, the learned Judges who decided that case observed:

When a Court in consequence of its own erroneous order ousts the rightful owner from the possession of property which belongs to him and places another in possession, it is the action of the Court which causes injury to the aggrieved party, and it is to the Court that the latter is entitled to look for redress. No suit lies against the Court. The proper remedy if the case is not one falling within Section 144, Civil P.C., is by exercise of the Court''s inherent powers.

In the present case the Rani was not strictly speaking ousted by the erroneous decision of the Court, since she was never in possession. All that existed at the time of the decree was a right of action by the rightful successor of the Baja in regard to the property in question. But by the erroneous order of the Court the Rani was prevented from enforcing that right, and Nilkantha by the erroneous decree was enabled to enforce it in her place.

It is argued that despite the decree the Rani could have sued the khorposhdar, and should have sued him before her right lapsed u/s 28, Limitation Act. That argument, in my opinion, is not justified. No doubt there was no legal bar to the Rani filing a suit; but she could not possibly have hoped to succeed having regard to the existence of the decision as between her and Nilkantha that Nilkantha, and not she, was the rightful successor of the Raja. The Rani, had she sued the khorposhdar, would have been put out of Court at once; and it is too much to argue that she should have wasted court-fees to secure a decision which could only embarrass her in the event of her getting the decision in the 1908 suit eventually reversed. There have been numerous cases where Section 144, Civil P.C., has been applied even where possession was transferred merely in consequence of the decree and not through proceedings under it: Surya Dat v. Jamna Dat AIR 1920 All. 190, Niadar Mal. v. Rattan Lal. AIR 1927 Lah. 625 and Bisheshwar Pratap v. Chandreshwar Prasad AIR 1928 Pat. 260.

These cases come very near the present case, where Nilkantha''s possession was obtained from the khorposhdars as a direct consequence of the decree though not strictly speaking under it. Thus, in my view, it was within the power of the Subordinate Judge to make restitution as against Nilkantha even u/s 144, Civil P.C.; but apart from Section 144 he was entitled to prevent injustice by the exercise of his inherent power.

I may usefully quote also from the observations of Rampini and Geidt JJ. in Dinesh Prasad v. Sankar Chaudhury (05) 2 C.L.J. 537:

In this case Raja Singh v. Kooldip Singh (94) 21 Cal. 989 a dictum of Sir Barnes Peacock is cited to the effect that ''the decree of reversal necessarily carries with it the right to restitution of all that has been taken under the erroneous decree in the same manner as an ordinary decree carries with it a right to have it executed.'' In the judgment in this case an extract from a decision of Patheram C.J. inMookoond Lal Pal v. Mahomed Sami Meah (87) 14 Cal. 484 is quoted, in which the learned Judge observed: ''I think it is an inherent right in the Court itself to prevent its proceedings being made any cause of injustice or oppression to any one and that therefore it seems to me that that inherent right does exist, and that the Court has power under the inherent right to order restitution of the thing which has been improperly taken and as a part of 1 that power it must have the right and the power to order restitution of everything which has been improperly taken. If they have that power, they have the power not only to order restitution of the property itself, but restitution of any proceeds which have been improperly taken during the time it was in possession of the person who was not entitled to it.''

It was clearly, in my opinion, within the competence of the Court to give the Rani restitution as against Nilkantha and that being so, restitution could also be given against all transferees from Nilkantha pen-dente lite. If it be necessary to hold as a consequence of this view that the Rani''s right to mauza Girnia was never extinguished u/s 28, Limitation Act, then I would be prepared to go even so far as that and to hold that Nilkanta in suing the khorposhdars under the decree, within the period of limitation, was representing the rightful owner of the estate, that is to say, the Rani and by his action did for her, what there is every reason to suppose she would have done for herself had she succeeded in the first Court, and so kept her right alive and saved it from extinction.

There remains the second point, namely whether the plaintiff has established his own right to sue. This involves a question of some difficulty, namely whether a valid agricultural lease can be created orally without delivery of possession. If it cannot be, the plaintiff is not the Rani''s lessee and so, even though her title and possession at the time of the alleged lease has been established, he has no right to sue upon the Rani''s title. This point does not appear to have been settled by any Indian decision and though my learned brother and I are in agreement upon all the other points, we are inclined to take different views upon this one, and we therefore consider it desirable that the matter should be laid before a Pull Bench.

Before indicating the grounds upon which my learned brother and I differ, it is, I think, advisable to set out some of the facts of the case in more detail and certain features in the evidence. It will be recalled (and there can be no doubt, having regard'' to certain admissions of the defendants'' wit. nesses, as to the correctness of the finding) that the Rani did get khas possession of the bakasht lands, including the land in suit, in 1923. The plaintiff''s claim is based on a hukumnama executed in his favour by the Rani on 2ist chait 1331 Fs. (1924). The plaintiff''s lease was therefore given by a landlord in possession. To prove that he was the Rani''s tenant, the plaintiff in the first Court proved his hukumnama (EX. 7). He also examined the Rani''s Tahsildar who gave oral evidence that the Rani had settled the suit land with the plaintiff in 1924 and stated that subsequently rent had been paid and accepted by the Rani, proving receipts (Exs. 2 to 2-b) written and signed by him.

The plaintiff further examined the Rani''s subsequent rehandar who was admittedly in possession and collecting rents of the village (for example, defendants'' witness 1 stated that the Rani''s rehandar had been collecting rents in the village for five and six years, and before the rehan the Rani herself was in possession of the village). This rehandar gave evidence for the plaintiff that the Rani had settled this land with the plaintiff, and that the plaintiff had cultivated the land for ten or eleven years and had paid rent first to the Rani and then to him. In support of this he proved rent receipts (Exs. 2-c to 2-f) granted by him to the plaintiff and corresponding counterfoils (EXS. 5 and 5-a.) He also proved that he had sued the plaintiff for rent for the years 1339 and 1340 Fs.

The plaintiff stated in evidence that the appellant''s father Daud Ali was his sister''s husband and that he (the plaintiff), originally held this land as bataidar under Daud Ali before the Rani obtained possession. These assertions were never specifically denied by defendant 3 or his witnesses. In the course of his evidence the appellant (defendants'' witness 2) said that one Ulfat Husain was actually in possession as his rehandar and grew the paddy. But defendants'' witness 3 in the course of his testimony stated that he did not know if the plaintiff had cultivated any portion of the land in suit, but that last year the land in suit was cultivated by Ulfat Husain on behalf of the plaintiff.

Other witnesses for the appellant did not support his story that Ulfat Husain was in possession as his (defendant 3''s) rehandar. On the contrary defendants'' witness 4 stated that the appellant had always cultivated the land in khas and that he himself was his kamia. Defendant''s witness 6 gave yet another story. He said that he had cultivated the land in suit for two years under the appellant in batai. Lastly, after the suit was filed, all the defendants except the appellant, and including defendant 2, brother of the appellant, who had jointly claimed under the same hukumnama from Daud Ali with the appellant and who has actually joined in the appeal, filed a petition admitting the title of the plaintiff to the land in suit and relinquishing unconditionally all their rights thereto.

The first Court accepted the plaintiff''s hukumnama as evidence, and accepted the oral evidence with regard to the plaintiff''s possession and dispossession. But the lower appellate Court rejected the plaintiff''s hukumnama as being inadmissible for want of registration, and also held that the plaintiff had never been in possession, though the learned Subordinate Judge did find that the Rani had come into possession, and held that the plaintiff''s tenancy under the Rani was established by the other evidence adduced apart from the hukumnama. The question is whether upon these facts and in these circumstances it can be held that there was admissible evidence upon which the finding of the lower Courts that the plaintiff had established his tenancy could legally be based. The question really comprises two sub-questions: first, whether in such circumstances there can be said to be any lease at all; and, secondly, whether, if there is any, it can be proved. Section 107, T.P. Act, provides that:

A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.

Provided that the Local Government may with the previous sanction of the Governor-General in Council from time to time, by notification in the local official Gazette, direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.

It is clear therefore that in the case of. a lease under the Transfer of Property Act, a lease from year to year, or for any term exceeding one year, or reserving a year rent cannot come into existence at all unless there is a registered instrument. There is therefore in such case no question of proving the existence of the lease by any other evidence. Moreover, in the absence of a notification by the Local Government no other lease can come into existence merely by oral agreement, and unless the oral agreement is followed by delivery of possession there is no lease to prove. The position, however, is different in the case of agricultural leases. Section 117, T.P. Act, provides that:

None of the provisions of Chap. 5 (which deals with leases of immovable property) shall apply to leases for agricultural purposes, except in so far as the Local Government may, by notification. declare all or any of such provisions to be so applicable in the case of all or any of such leases, together with, or subject to, those of the local law, if any, for the time being in force.

Hence in the case of agricultural leases it is necessary to look to the provisions of the Tenancy Acts or of any other Acts which may be applicable. The Bihar Tenancy Act nowhere states that a written document is necessary to create even a permanent lease. There is no definition of ''lease'' in the Bihar Tenancy Act or the Bengal Tenancy Act, and there is no provision as to how a lease is to be created. It may, however, be taken to be settled that under these Tenancy Acts a lease, even a permanent lease, may be created orally. The letting out of agricultural land need not be by a written document. It may be by oral agreement, or even by conduct of parties: Alam Mulla v. Surendra Kumar AIR 1923 Cal. 432.

And again, an agricultural lease may be made orally: Giribala Dasi Vs. Dwarka Nath Mistri and Others, . An agricultural lease, however, cannot be created by an unregistered written instrument. This is not by reason of any provision of the Transfer of Property Act, which is inapplicable, but results from the provisions of the Registration Act. In Section 17(l)(d), Registration Act, it is provided that lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent shall be registered; and u/s 49 of the same Act:

No document required by Section 17...to be registered shall (a) affect any immovable property comprised therein, or...(c) be received as evidence of any transaction affecting such property...unless it has been registered.

It follows from this that a permanent agricultural lease can be created orally, but cannot be created by any written instrument unless that instrument is registered. Moreover, an unregistered document purporting to create such a tenancy cannot be received as evidence of the transaction, and further, u/s 91, Evidence Act:

When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document...no evidence shall be given in proof of the terms of such contract, grant or other disposition of property...except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions of the Act.

It has accordingly been laid down in Janki Kuer v. Brij Bhikhan Ojha AIR 1924 Pat. 641 that where the lease requires registration, and is unregistered, it will be inadmissible in evidence u/s 49 of the Act, and other evidence of its terms would be precluded by Section 91, Evidence Act. A distinction must, however, be drawn between proving the terms of a lease and proving its existence. It is not necessary for the plaintiff, suing as against'' a trespasser, to prove the terms of his lease. All that he must do to succeed is to prove the factum of his lease or of his tenancy, that is to say, to prove his right to sue as representing the landlord in regard to the limited tenancy right demised to him by the landlord.

It is well settled that the fact of the existence of a particular relationship may be shown by parole evidence although the terms which govern such relationship appear to be in writing. Section 91, Evidence Act, only excludes other evidence of terms of a document, but not of existence of the contract Kedar Nath Joardar v. Shurfoonnissa Bibee (75) 24 W.R. 425, The King v. Holy Trinity Kingston-upon-Hull (1827) 7 B & C 611, Mash v. Densham 1 M & R 444, Doe v. Harvey (1832) 8 Bing 239 and Varada Pillai v. Jeevarathnammal AIR 1919 P.C. 44, Chhotalal Aditram v. Bai Mahakore AIR 1917 Bom. 206 and Munnalal v. Narayan AIR 1933 Nag. 270. It has accordingly been held in a number of rulings that where there is a written lease which is inadmissible in evidence other evidence to prove the factum of the tenancy can be adduced, although the actual terms of the inadmissible document are excluded u/s 91, Evidence Act. Such other evidence may be the subsequent conduct of the parties, such as demand, payment, and acceptance of rent.

It has indeed been laid down by the Privy Council itself that recognition and acceptance of rent is sufficient proof of the existence of a tenancy: AIR 1932 264 (Privy Council)

Again in Ramnandan Prasad v. Tilakdhari Lal AIR 1933 Pat. 636 it has been held that a tenancy under the Bengal Tenancy Act can be proved without proving the lease, if there be one, which is inadmissible for want of registration.

In Ameer Ali v. Yakub Ali Khan AIR 1915 Cal. 39 it was held that where a kabuliat had been executed but was not registered, and never came into operation, oral evidence might be given to prove the rent agreed upon by the parties; and it was expressly observed that existence of a tenancy can be proved without proving the lease if there be one.

In Rajkumari Baishnavi v. Shyama Bibi 25 C.W.N. 13, it was held that in India it is possible to establish a tenancy, without the production of a lease, by proof of payment of rent by the tenant and acceptance of rent by the landlord.

In Fazel Sheikh v. Keramuddi Sheikh 6 C.W.N. 916, it was held that a tenant can prove his tenancy right without proving his lease, if he has one which is-inadmissible for want of registration. This case followed an earlier decision in Lala Surabh Narain Lal v. Catherine Sophia 1 C.W.N. 248.

Other rulings to a similar effect are Banka Behary Christian v. Rajchandra Pal 2 Ind.Cas. 202 and Chavali Subbanna v. Tullura Venkatarayudu AIR 1916 Mad. 623. Even in the ruling already cited,Janki Kuer v. Brij Bhikhan Ojha AIR 1924 Pat. 641, where it was held that the unregistered lease was admissible and Section 91, Evidence Act, precluded other evidence of its terms, it was ob-served that where the subsequent acts of the parties themselves disclose a state of affairs consistent only with the existence of an agreement mutually recognized and acted upon as if the agreement were binding upon the parties, then although the written document may be defective as a valid! and finally concluded agreement, such defects may be supplied by evidence as to the subsequent conduct of the parties. In several of these cases the other evidence available in proof of the tenancy included evidence of use and occupation of the land. There can of course be no such evidence in the present case where it has been held) that the plaintiff never obtained possession; and the plaintiff in the present case, if he can succeed at all, can succeed only by proof of the creation of his lease by contract as distinct from the creation of a tenancy by use and occupation.

The question therefore is whether there is legal evidence�oral or documentary�from which the existence of a concluded lease can be inferred if such evidence b& believed. It has been held that where a suit is against a mere trespasser, as in the present case, and the existence of the tenancy is admitted by the landlord, no very strict evidence is necessary to give the plaintiff the right to sue.

For example, in a case already referred to, Banka Behary Christian v. Rajchandra Pal 2 Ind.Cas. 202, it was held that when the dispute is not between the plaintiffs and their lessor, and the defendants are mere trespassers upon the land, it is open to the plaintiffs to prove their tenancy aliunde when the lease granted to them is inadmissible for want of registration or otherwise, and it was held that their possession prior to the trespass was a sufficient title giving the plaintiffs the right to sue.

The ease in Sundar Ali and Others Vs. Nur Mamud and Others, was in many respects analogous to the present one. There the plaintiffs were out of possession, and they sued to recover possession from the principal defendants on the basis of a tenancy which was alleged to exist under the pro forma defendant "23. The defendants challenged the tenancy and asserted a right of their own. The Courts found that the right set up by the defendants did not exist, and although the pro forma defendant filed a written statement admitting the tenancy, the Court of first instance held that the plaintiffs could not succeed as they failed to establish their tenancy under defendant 23, While the appeal was pending in the High Court the pro forma defendant 23 died and no attempt was made to bring on record his legal representatives. A preliminary point was taken that the appeal thereby became incompetent.

This contention was negatived by the High Court, which held that the suit would have been quite in order even if it had been instituted by the plaintiffs against the contesting defendants, without impleading the alleged lessor as a pro forma defendant at all. The Court further held that the hukumnama on which the plaintiffs relied to prove the tenancy, had rightly been rejected as inadmissible for want of registration. Nevertheless the plaintiffs could rely on oral evidence to support the tenancy. The learned Judge observed:

In the first place the pro forma defendant filed his written statement admitting the tenancy (just as the rehandar in the present case, who is admittedly the landlord in possession, has admitted the tenancy). Secondly, there is oral evidence, which has been believed by the lower appellate Court, in support of the tenancy of the plaintiffs. Dr. Mukerjee who appears for the appellants urges that this oral evidence is not admissible at all. A tenancy can be proved by documentary or oral evidence. It is a suit by the plaintiffs against a trespasser, and in order to succeed the plaintiffs are not bound or are required to prove the terms of the tenancy which they obtained from the pro forma defendant 23. If they could simply prove that defendant 23 had accepted rent from them, that would have been quite sufficient for the purpose of maintaining a suit against the defendant, who is a trespasser. In these circumstances I hold that the lower appellate Court is right in holding that the plaintiffs had established their tenancy right under defendant 23 by the evidence which I hold is admissible in law.

The difficulty arises from the fact that in all the above rulings the lessee was either in possession or had been in possession, or the question of possession was not specifically raised. It is here that my learned brother and I are not in agreement. He is of opinion that the rulings with regard to the proof of a tenancy aliunde are not applicable where there has been no delivery of possession, the delivery of possession being an essential part of the creation of the tenancy. The land in suit is land to which the Bihar Tenancy Act applies. According to Clause (3) of Section 3 of that Act a tenant is a person who holds land under another person, and is, or but for a special contract would be, liable to pay rent for that land to that person, and rent is defined by Clause (5) as whatever is lawfully payable or deliver, able in money or kind by a tenant to his landlord on account of the use or occupation of the land held by the tenant. The possession need not be direct for it includes possession through under-tenants, as is shown by the definition of tenure-holder as a person who has a right to hold land for the purpose of collecting rents on bringing it under cultivation by establishing tenants on it.

It is therefore clear that a person who has never been put in possession of the demised land or the demised interest cannot be a tenant within the meaning of the Tenancy Act, or liable for rent. By the very terms of the definition he must be a person who holds land either directly or indirectly through under-tenants, and his liability for rent arises by reason of his use or occupation of the land. It is not the case that the present plaintiff had been granted a rent-free tenancy. The liability to pay rent in oases where there is no contract for a rent-free grant is, in the view of my learned brother, the crucial test of the existence of the tenancy of agricultural land in cases where the Tenancy Act applies. If the doctrine of interesse termini applied, the case would be different, but that doctrine is applicable only to a lease for a term and the plaintiff''s hukumnama in the present case is not a lease for a term, his case indeed being that being a settled raiyat of the village he has permanent occupancy rights in the suit land.

In my view, however, the lease is created by the contract itself, and comes into existence on the conclusion of the oral contract for a present; demise, irrespective of any question of delivery of possession. I agree with my learned brother that in such a case the lessee is not a tenant according to the special definition of ''tenant'' in the Bihar Tenancy Act, but I see no reason why a person should not be the holder of a valid agricultural lease without actually being a tenant. I am also in agreement with my learned brother that the doctrine of interesse termini has no application in this country and especially in a case like the present one. If the plaintiff can succeed, it is not through any such doctrine, but upon general principles. It is, I consider, clear that the writing of a contract without registration cannot create any lease at all where registration is required under the Registration Act.

Therefore there is no question of attempting to prove, by other evidence, the existence of a lease created by the wirtten document. But it is also clear, in my view, that if it can be held that there is any collateral oral agreement of lease, or that there was actually an oral agreement the terms of which were written down for convenience or as a memorandum, as may be the case with a hukumnama, then that oral agreement may constitute in itself a fectly valid lease irrespective of any question of possession; and if the conclusion of that Oral contract can be proved by any evidence, then the existence of a lease and consequently the plaintiff''s right to sue has been established.

In my view no distinction as to whether the lease can or cannot be proved by evidence independent of the writing can be properly based upon the circumstance that it may or may not have been followed by possession. The only criterion in my view is whether there can be said to be any lease in existence which can be proved by other evidence, and the existence of the lease does not depend upon the question of possession, but on the nature of the contract�a contract which can come into existence merely with offer and acceptance. Evidence of possession may no doubt form a part of the other evidence which may be offered to prove the existence of the contract, but possession is not an essential part of the contract itself. The liability to pay rent may be a crucial test of the existence of a tenancy; but when the tenant is out of possession, that liability still exists, the tenant only being entitled to suspension of rent. It is a liability existing in suspension, and the fact that no rent is at the time payable does not therefore prove that there is no valid lease. Evidence of possession is not the only evidence by which the existence of a contract can be proved. If there is an oral contract, it can be proved by direct oral evidence. It can also be inferred from the payment and acceptance of rent.

It is, in my view, clear that in the absence of any express provision of law to the contrary an oral lease comes into existence upon the conclusion of the contract. It arises out of the contract and becomes complete on the conclusion of the contract irrespective of any question of possession, if that contract is an actual demise. Section 105, T.P. Act, defines a ''lease'' as a transfer of a right to enjoy the property. Upon the definition therefore it is the transfer of the right to enjoy, and not of actual possession, which constitutes a lease. Words of present demise are generally conclusive of a lease: Ramjoo mahomed Vs. Haridas Mullick and Others, , Sultanali Mulla Rasoolji v. Tyeb Pir Mahomed AIR 1930 Bom. 210. There is a present demise even if the lease hold interest is to commence in the future: Mopurappa v. Ramaswami Gramani AIR 1934 Mad. 418; Doe v. Groves (1801) 15 East 244.

An agreement itself is construed as a. lease if the terms are fixed: Norton v. Ellam (1837) 2 M & W 463. It has been held that a mere failure to obtain possession of a property leased is immaterial (when the lessee sues upon it against sub-tenants) except to show that the lease was not intended to be a real transaction at all: Muthukumara Chetty v. Anthony Udayar AIR 1915 Mad. 296. In another case Bhuban Mohan v. Edan Sardar AIR 1915 Cal. 563 the plaintiff and the defendants both claimed to be lessees under the same landlord. The plaintiff sued to eject the defendants, and there was nothing to show that he had ever been in possession. His amalnama was held inadmissible for want of registration. But it was held that he could prove his tenancy by proof of payment of rent to the landlord so as to establish that there was a real contract of tenancy.

In Kailas Chandra v. Bejoy Kanta Lahiri AIR 1919 Cal. 837, it was held that a contract to grant a permanent lease made orally may be treated as a concluded agreement, although there is no express stipulation as to the time of the commencement of the lease (and hence no question of delivery of possession).

That the lease comes into existence with the conclusion of the contract of demise and is not necessarily dependent upon the lessor putting his lessee into possession, can also be inferred from the fact that in a number of rulings it has been held that where the lessor fails to put his lessee into possession, the latter can sue his lessor and can also sue a third person for possession: Achayya v. Hanumantrayudu (91) 14 Mad. 269, Bhutia Dhondu v. Ambo (89) 13 Bom. 294 , Bishen Sarup Vs. M. Abdul Samad, and Md. Fazihzzaman Vs. Anwar Husain, .

In Achayya v. Hanumantrayudu (''91) 14 Mad. 269 the Court went so far to hold that a lessee is entitled to maintain a suit for ejectment against the party in. possession, though he has never been put in possession, and notwithstanding the fact that at the date of the lease his lessor was not in possession of the property. In the latter respect that ruling appears to have gone too far, since it appears to be directly contrary to the decision of the Privy Council in Tiery v. Kristodhun Bose (73) 1 I.A. 76 where it was held that there could be no valid lease if the lessor is not in possession. It is true also that all these cases are cases governed by the Transfer of Property Act, and not by the Tenancy Act. It is also to be noticed that in Bishen Sarup Vs. M. Abdul Samad, both the lessor and the person in actual possession were impleaded, and in Md. Fazihzzaman Vs. Anwar Husain, the lessor was also a party to the suit.

In fact the lessor in that case was one of the plaintiffs. Bhutia Dhondu v. Ambo (89) 13 Bom. 294 relied on the doctrine of interesse termini, and as I have said, it is doubtful whether that doctrine had really, any application. But in my view, as I have said already, the plaintiff''s right to sue does not depend upon any special doctrine, but upon the general principles that a valid lease of agricultural land can be created orally and can be proved by oral evidence, and nothing more is necessary than a valid leasehold interest to give the plaintiff a right to sue, when it has been proved that his lessor has title and was in possession at the time of the creation of the lease.

Indeed, in my opinion, where the lessor and lessee, as in the present case, are agreed as to the existence of the relationship of landlord and tenant between them, and the suit is against a mere trespasser, that is to say, a third party, that third party cannot, merely because he is a trespasser upon the land, be heard to deny the existence of the relationship of landlord and tenant as between the plaintiff and his landlord who comes forward with evidence to support it. I do not think that the plaintiff can be put out of, Court upon a denial of his right to sue upon a relationship which is confirmed by the landlord himself. It seems to me that the existence of a valid contract between them is a matter purely between the lessor and the lessee, and if they are agreed as to the existence of that relationship, both parties asserting that there is a contract between them, then it is not for any third party to deny it. My learned brother and I agree that this case should be placed before his Lordship the Chief Justice with a request that the case may be laid before one or more of the other Judges of the Court in accordance with the provisions of Clause 28 of the Letters Patent for hearing upon the question whether, on the facts stated, the plaintiff is entitled to maintain the suit.

Agarwala J.

I agree except as to one point, namely, whether, in the case of a written unregistered lease of agricultural land, the lessee to whom possession has not been delivered by the lessor, is entitled to maintain an action in ejectment against a person in possession and not claiming under the lessor. In Achayya v. Hanumantrayudu (91) 14 Mad. 269 it was held that a lessee is entitled to maintain a suit for ejectment against the party in possession, notwithstanding the fact that, at the date of the lease, his lessor was not in possession of the property and consequently was not able to put him in possession. This decision has been followed by the Allahabad High Court in Bishen Sarup Vs. M. Abdul Samad, . This was a case of a lease in reversion, i.e., a case in which a lease had been granted to commence from the expiry of the term of an existing lease. It was held that as the lessee is entitled to sue his lessor for possession there was no reason why he should be barred from suing a third person in possession merely because the lessor chooses to allow another person to continue in possession of the leased property. Their Lordships observed:

In this case both the lessor and the person in actual possession have been impleaded and we cannot see that there is any defect in the frame of the suit which is fatal to the claim.

In the present case the lessor is not a party to the suit. This case was followed in Md. Fazihzzaman Vs. Anwar Husain, where a person to whom a lease had been granted to commence after the expiry of a lease in existence sued to eject the first lessee on the expiry of his term. It was contended that the subsequent lessee had no right to eject the previous lessee who was holding over.

In this case also the lessor was a party to the suit. In fact the lessor in that case was one of the plaintiffs. Their Lordships purported to follow the decision of the Madras High Court in Achayya v. Hanumantrayudu (91) 14 Mad. 269. That decision appears to me to be directly contrary to the decision of the Privy Council in Tiery v. Kristodhun Bose (73) 1 I.A. 76 where it was held that there could be no valid lease if the lessor is not in possession. Furthermore, these were cases governed by the Transfer of Property Act and not by the Tenancy Act. A case whose facts are near to those of the present case is Sundar Ali and Others Vs. Nur Mamud and Others, . The plaintiff relied on a hukumnama which was inadmissible for want of registration. He then relied on the fact that rent had been accepted from him by his lessor and it was held by Mitter J., sitting singly, that this fact was sufficient to support an action in ejectment against a trespasser in possession. The report does not show whether the plaintiff had obtained possession from his lessor and then been dispossessed, so the case is no authority for the view that a present oral demise of agricultural lands can be effected without delivery of possession. The lessor was a party to the suit and admitted the tenancy but died pending an appeal by the lessee and his representative was not substituted in his place.

In England a lessee who is not put in possession by his lessor has been held not to be a tenant but to have an interest in the term of the lease sufficient to support an action in ejectment against either his lessor or a third person. This doctrine of interesse termini is a doctrine of English common law which was applied in the case of a lease for a term of years where the lessor did not put the lessee in possession. The doctrine itself has been abolished by the law of Property Act, 1925. It applied in England only in the case of a lease for a term. But in Bhutia Dhondu v. Ambo (89) 13 Bom. 294 it was relied on by a Division Bench of the Bombay High Court. It is difficult to see what the doctrine of interesse termini had to do with the facts of that case, which were that defendants 1 and 2 were the subtenants, of defendant 3 who had certain land which was part of the inam of village D. In 1883 defendant 3 executed a rajinama in the following terms which he gave to the receiver who had been appointed by the Court to manage the village:

Upto the present time my father and I have been cultivating the land, but the land belongs to the inamdar. I have no title over it, and the inamdar can give it for cultivation to anyone he pleases.

Shortly after the date of this rajinama the inamdar gave the land to the plaintiff who then sued to obtain it from the defendants who had remained in possession. It was held that the rajinama operated as a relinquishment of the tenancy by defendant 3 u/s 74, Bombay Land Revenue Code of 1879. It was also held that the plaintiff was entitled to sue in ejectment although he had not been put in possession of the land, and that it was in this connexion that the doctrine of interesse termini was refer, red to. The case was obviously one of the relinquishment and not of a lease, and as I have said above, the doctrine of interesse termini had no application to it. If I am right in my view that the doctrine does not apply to agricultural leases in India the plaintiff is entitled to succeed only on proof that he is a tenant of the Rani or her usufructuary mortgagee. In the Privy Council case referred to above their Lordships commented on the expediency of insisting on strict proof on the part of the plaintiff in ejectment. If the Rani or her usufructuary mortgagee had been a party to this litigation it would have been possible, as in the Allahabad cases referred to above, to decide the rights of the respective parties; but in the absence of the Rani and the usufructuary mortgagee, who are not parties to the suit out of which this appeal has arisen, it cannot be decided as against them that the plaintiff is a tenant.

The land in suit is land to which the Bihar Tenancy Act applies. According to Clause (8) of Section 8 of that Act, the tenant is a person who holds land under another person, and is, or but for a special contract would be liable to pay rent for that land to that person, and rent is defined by Clause (5) as whatever is lawfully payable or deliverable in money or kind by a tenant to his landlord on account of the use or occupation of the land held by the tenant. The possession need not be direct for it includes possession through under tenants as is shown by the definition of tenure-holder as a person who has a right to hold land for the purpose of collecting rents or bringing it under cultivation by establishing tenants on it. To my mind it seems perfectly clear that a person who has never been put in possession of the demised land or the demised interest cannot be a tenant within the meaning of the Tenancy Act or liable for rent. By the very terms of the definition he must be a person who holds land, either directly or indirectly through under-tenants, and his liability for rent arises by reason of his use or occupation of the land. It is not the case that the present plaintiff had been granted a rent-free tenancy. The liability to pay rent in cases where there is no contract for a rent-free grant seems to me to be the crucial test of the existence of a tenancy of agricultural lands in cases where the Tenancy Act applies and I can find no authority for the view that rent is payable for such lands by a person who has never been put in possession of them. If the doctrine of interesse termini applied, the case would be different but it seems to me that that doctrine is applicable only to a lease for a term.

The plaintiff''s lease being in writing and not being registered oral evidence is not admissible for the purpose of proving that it was a lease for a term, and, in any case, it is not the plaintiff''s case, that he is a lessee for a ''term but that, being a settled raiyat of the village, he has permanent occupancy rights in the suit land.

Fazl Ali J.

The suit which has given rise to this appeal relates to 2.58 acres of land in mouza Girnia which admittedly appertains to Gadi Serampur, a revenue paying estate situated in the Hazaribagh District. About the year 1908, some time after the death of one Raja Sarda Narain Singh, the proprietor of this estate, the estate became the subject of a prolonged litigation between his widow Rani Jagdamba Kuer and his uncle Nilkant Narain Singh. At first Rani Jagdamba Kuer was in possession of the estate, but, in pursuance of a decree obtained by Nilkant Narain Singh against her, the latter obtained possession thereof. Subsequently, by another suit he obtained possession of village Girnia and then gave a mukarrari settlement of the village to one Daud Ali in 1915. Daud Ali afterwards leased out the bakasht lands to his sons, the appellant being one of them, in respect of some of the bakasht lands including the disputed land. Subsequently, the decree under which Nilkant Narain Singh, had obtained possession was reversed and the Rani obtained restitution.

The plaintiff''s case is that after she got possession of the bakasht lands of Girnia, she made raiyati settlement of the lands in suit with him by means of a hukumnama in the year 1924, and he came into possession by virtue of this settlement. The settlement was afterwards confirmed by a rehandar who got possession of the village under a deed of mortgage executed by the Rani but the plaintiff was dispossessed by the appellant and the other defendants in Saon 1341 and so he had to bring this suit. The suit was contested by the appellant Hanif alone, but he failed in the first two Courts and most of his pleas have also been rejected by Agarwala and Meredith JJ., before whom his second appeal came up for hearing. The learned Judges, however, not being agreed as to one of the points raised on behalf of the appellant, this case has been laid before me under Clause 28 of the Letters Patent, and the point which I have to decide has been formulated thus by Meredith J., in Ms judgment:

My learned brother and I agree that this case should be placed before his Lordship the Chief Justice with a request that the case may be laid before one or more of the other Judges of the Court in accordance with the provisions of Clause 28, Letters Patent, for hearing upon the question whether on the facts stated, the plaintiff is entitled to maintain the suit.

As I have already stated the case of the plaintiff was that the disputed land had been settled with him by the Rani by means of a hukumnamah. This hukumnamah being unregistered has been held to be inadmissible in evidence. It has also been found by both the learned Judges that the plaintiff never obtained possession under this hukumnamah and that a person who cannot be put in possession of the demised land cannot be a tenant within the meaning of the Tenancy Act or liable for rent. The learned Judges have further held that the doctrine of interesse termini is not applicable to the present case. Meredith J. was, however, of the opinion that a person may be a holder of a valid agricultural lease without actually being a tenant, that on general principles a valid lease of agricultural land can be created orally and can be proved by oral evidence; and that nothing more is necessary than a valid lease-hold interest to give the plaintiff a right to sue, when it has been proved that his lessor had title and was in possession at the time of the lease. In short he held that in spite of the fact that the plaintiff''s lessor did not give possession to him, a complete and valid lease was orally created in his favour and this entitles him to recover possession of the land. Agarwala J. expressed his disagreement with this view in these words:

I agree except as to one point, namely, whether, in the case of a written unregistered lease of agricultural land, the lessee to whom possession has not been delivered by the lessor, is entitled, to maintain an action in ejectment against a person in possession and not claiming under the lessor.

Now, as far as I can gather Agarwala J. was not prepared to go as far as Meredith J. as regards the alleged "oral lease." What he has said in his judgment amounts merely to this-given an unregistered lease of agricultural land which is not admissible in evidence and it being conceded that the lessor never delivered possession to the alleged lessee, a lessee cannot maintain an action in ejectment against a person in possession. In my opinion, upon the facts stated and specially when it is found that the plaintiff came to Court with a specific case that there was a written lease in his favour, the case cannot be decided upon the assumption that there was also an oral lease.

Assuming, however, that such an assumption could be made, we have still got to remember the distinction between a completed lease and an agreement to lease. If the Rani, notwithstanding the fact that she was in possession at the. time of the lease and, therefore, could easily put her lessee in possession, did not give him possession, it is difficult to hold that the transaction was anything more than a mere agreement to lease. If she was herself not in possession at the time of the alleged oral settlement, the lease could not become operative until possession was recovered by her and so in that view also the transaction amounted only to an agreement to lease. This view can be supported by several authorities, but I shall merely refer to Rajah Sahib Perhlad Sein v. Baboo Budhoo Singh (69) 12 M.I.A. 275. In that case their Lordships of the Judicial Committee observed as follows:

But how can there be any such transfer, actual or constructive, upon a contract; under which the vendor sells that of which he has not possession, and to which he may never establish a title. The bill of sale in such a case, can only be evidence of a contract to be performed in future and upon the happening of a contingency of which the purchaser may claim a specific performance if he comes into Court showing that he has himself done all that he was bound to do.

Assuming, however, that the transaction amounted to a present demise, the question which still remains to be decided is whether such a demise is complete without delivery of possession. u/s 107, T.P. Act, a lease of immovable property from year to year or for any term exceeding one year or reserving yearly rent can be made only by a registered instrument, but all other leases of immovable property may be made either by a registered instrument or by an oral agreement accompanied by delivery of possession. In other words under this Act title cannot be complete in certain class of leases without there being a registered instrument and in others without delivery of possession.

In leases of the former class the registered instrument takes the place of the delivery of possession by reason of a specific provision in the statute. No doubt the Transfer of Property Act does not apply to agricultural tenancies but there is no provision in the Tenancy Act or any other Act to show that an oral settlement which is not accompanied by delivery of possession is a complete transfer. It is to be remembered that the actual words used in Section 107, T.P. Act, are "oral agreement accompanied by delivery of possession" and not "oral lease act companied by delivery of possession." This, shows that delivery of possession is necessary to complete the transaction and without such delivery of possession the transaction will merely amount to an oral agreement and not a complete lease. I think that the" provision which is to be found in this section represents the prevailing law with regard to agricultural land also.

As far as I am aware most of the cases in which it has been held that a tenancy in respect of a piece of agricultural land can be created by an oral agreement are cases where a tenant had been actually inducted on the land. If the plaintiff is not yet a tenant as has been held by both Agarwala and� Meredith, JJ., it follows that the relation, ship of landlord and tenant under the Bengal Tenancy Act has not yet come into existence and therefore it is doubtful whether the case will be governed by the Tenancy Act. Assuming for the sake of argument, however, that it will be so governed, because the land which is the subject of the contract is agricultural land, I find no clear authority to support the view that an agricultural lease will be complete without delivery of possession. The only case in which this view seems to have been suggested is Sundar Ali and Others Vs. Nur Mamud and Others, decided by a Single Judge but in that case the lessor was originally a party to the suit and as Agarwala J. points out the report does not show whether the plaintiff had obtained possession from his lessor and then dispossessed. In, any event, if the learned Judge who decided that case meant to lay down that there may be a complete and valid agricultural lease without delivery, of possession, I am not prepared to subscribe to that view.

In some old cases it has been pointed out that according to Hindu law a change of possession is necessary to complete a sale or gift of a corporeal property and a purchaser or donee from a Hindu who buys or receives in gift any corporeal property without possession, does not thus obtain a title, which in a suit for specific performance against the vendor he can enforce against a person actually in possession under a title adverse to the vendor. Thus it would seem that the old law in this country was that no transfer is complete without delivery of possession and there is nothing before me to show that this law was changed afterwards by any statute. In any case no statutory provision has been cited before me to show that there has been any such change. It is common ground that though no document is necessary to create an agricultural lease, yet if an agricultural lease is reduced to writing, it must be registered. What will then happen in a case where a person soon after giving an oral lease to A, which is not accompanied by delivery of possession, gives to B a registered written lease? As I am bound by the decision of the learned Judges who heard this appeal on points other than the one which has been referred to me, I cannot hold that the doctrine of interesse termini can be applied to this case. This doctrine has been explained by Bayley, J., in Doe v. Walker 108 E.R. 41 in these words:

The right upon a lease to commence in praesenti is (except under the statute of uses) until entry an interesse termini only and so is the right upon a lease to commence in futuro: each is a right only, not an estate. The whole estate, notwithstanding such right is in the lessor.

This observation confirms the view that lease is not complete without possession. It also follows that without recourse to some such doctrine a lessee will not be entitled to sue for possession on his own account without impleading the lessor. My conclusions there, fore are as follows : (1) The plaintiff having specifically pleaded that there was a written unregistered lease in his favour, cannot be allowed to set up the case of an oral lease though he could have, even apart from the unregistered lease, relied on his tenancy right, if he had been let into possession. (2) On the facts stated, the transaction relied on by the plaintiff may be regarded either as an agreement to lease or a lease which is not completed by delivery of possession. (3) The plaintiff in such circumstances cannot alone maintain a suit though different consideration might have arisen if his lessor was a party to the suit.

On the whole therefore I am inclined to agree with Agarwala, J., and hold that the plaintiff is not entitled to maintain the suit.