JUDGMENT Sulaiman, Ag. C.J.
1. This is a Defendant's appeal arising out of a suit for recovery of possession on the strength of a lease. Defendant 2 is the owner of the property which consists of a quarry to be worked. He had granted a lease in favour of defendant 1 which was to expire at the end of May 1923. Another lease was executed by Pahlad Narain, professing to be the general attorney of the owner, on 10th April 1926, in favour of the plaintiff for a period of 10 years to come into effect from June 1928 on the expiry of the lease in favour of defendant 1.
2. The plaintiff alleged that he had not obtained possession and accordingly sued to recover possession. Ho impleaded both the owner and the former lessee as defendants. On behalf of the defendants it was denied that any valid lease was executed by Pahlad Narain. On behalf of the owner it was urged that the alleged agent had no authority to grant any such lease. There was also a plea of want of notice under Section 10G. A few other pleas also were taken.
3. The learned Subordinate Judge framed no less than seven issues, but disposed of the case on his findings of fact on issues 1 and 2 only. The learned District Judge has come to a contrary conclusion on those points and has remanded the whole case.
4. The first point to be considered is whether a private copy of the power-of-attorney under which Pahlad Narain, the agent, professed to act was admissible in evidence. The Courts below have differed.
5. A copy of the general power-of-attorney cannot be obtained by any person who is no party to the deed. The original could be produced either by defendant 2 or his agent Pahlad Narain, and we think that a copy could be obtained by these persons alone. The learned Subordinate Judge had first ordered defendant 2 to produce either the original power-of-attorney or a certified copy within 10 days. This he failed to do. Later on he was allowed to appoint a special attorney for the purpose of obtaining such copy from Patna where the deed had been executed. The only copy which was obtained from Patna was of an abstract of the power-of-attorney and not a copy of the whole document, although an application for a copy of the whole document had been made.
6. The abstract shows that the document was executed before and authenticated by the Sub-Registrar under Section 33 (1) (a), Registration Act. It was obviously not registered and that is why a complete copy of the original has not been retained by the Sub-Registrar. Section 74, Sub-section (2), Evidence Act, cannot apply to this case because the Sub-Registrar was not called upon to keep a public record of this private document. We are therefore satisfied that the learned District Judge was right in holding that when the original was not forthcoming it was open to the plaintiff to prove a private copy of it in the way allowed by law.
7. The other question that is raised on behalf of the defendants is that notice under Section 106 should have been given before the suit was instituted. As pointed out by the learned District Judge, this is not a suit for possession brought by the plaintiff lessee against his own lessor, defendant 1, who is retaining actual possession. Section 106 does not apply to the case of a lessee for a fixed term when the term has expired.
8. It is contended on behalf of the appellant that by virtue of the provisions contained in Section 116, notice became necessary if the lessor subsequently assented to his continuing in possession on the expired lease or accepted rent. But these sections regulate the rights of the lessor and the lessee inter se when a suit for ejectment is brought.
9. The next question urged is whether a suit by the plaintiff as lessee against defendant 1 who is continuing in possession, is maintainable without a proper [ejectment suit having been brought by the lessor himself. Reliance is placed on the case of Ibad Ullah Khan v. Ram Charan Sah [1920] 53 I.C. 140 for the proposition that no such suit by a lessee is maintainable. An examination of the facts of that case however shows that there the lessee could have been ejected only by the revenue Court, and he not having been so ejected, the civil Court bad no power to dispossess him. It was in these circumstances that the learned Judge of the Oudh Court held that a suit by the lessee in a civil Court was not maintainable. Under Section 108, Sub-section (b), the lessor is bound on the lessee's request to put him in possession of the leased property. Thus there is a liability on the lessor to put the lessee in possession even though the actual transfer of interest in the immovable property may not have taken place. There is no reason why the lessee should not be able to enforce his own rights and the liability of the lessor to put him in possession. If the lessee can sue the lessor for possession in order to enforce the same, there seems to be no good ground why he should be debarred from doing so, merely because the. lessor chooses to allow another person to continue in possession of the leased property. In this case both the lessor and the person in actual possession have been impleaded and we cannot see that chore is any defect in the frame of the 'suit which is fatal to the claim.
10. As the learned Subordinate Judge had disposed of the question of ownership only and left practically all the other issues undecided, the learned District Judge thought that the ease had been disposed of on a preliminary point and he accordingly remanded the whole case for disposal. He also directed that the parties should have an opportunity to produce evidence on the question of the authority of Pahlad Narain to grant the lease. He has also left undecided the other matters which are covered by issues 3, 4, 6 and 7. The plea covered by issue 5 had been given up at the trial.
11. We think that the order of the learned District Judge is right and we accordingly dismiss the appeal, and direct that the costs should abide the event.