JUDGMENT Banerji, J.
1. This is a plaintiff's appeal in a suit for specific performance of a contract said to have . been entered into between the plaintiff Lachhman Singh and Bageshri Dayal, The learned Subordinate Judge dismissed the suit holding that the letter referred to in para. 2 of the plaint, dated 3rd February 1921, was inadmissible in evidence and no contract; between the parties could be proved.
2. It appears that Bageshri Dayal died in the year 1922 and was succeeded by Todar Mal and Birumal, defendants first party. On 23rd October 1925 Todarmal and Birumal executed a lease in favour of Baijnath and others, defendants second party. After the execution of the lease in their favour defendants second party applied to the revenue Court to have their names entered in the revenue papers. Lachhman Singh plaintiff objected, but his objections were disallowed and the names of Bajjnath and others were entered as lessees: hence the suit by Lachhman Singh.
3. The defence to the action among others was that the agreement referred to in the plaint was not admissible in evidence and that the plaintiff's claim was barred by time. Several issues were framed but the learned Subordinate Judge, by an order of 26th March 1927, directed the parties to produce evidence in respect of issue 3 only, and then the parties were permitted to argue issues 1 (b), 3 and 5. The learned Subordinate Judge, holding that the document of 3rd February 1921 was not admissible in evidence, held that the plaintiff was not entitled to seek specific performance of the alleged contract. As regards issue 3 it was held that the claim regarding specific performance was cognizable by the civil Court, but that under the Tenancy Act the suit for possession . should be instituted in the revenue Court. As regards issue 5 it was held that the plaintiff's claim Was not barred by limitation.
4. The plaintiff has come up in appeal before us and it is contended by the learned Counsel for the appellant that the learned Judge of the Court below, in view of the ruling of their Lordships of the Privy Council in the case of Hemanta Kumari Debi v. Midnapur Zamindari Co. A.I.R. 1919 P.C. 79, should not have held the letter of 3rd February 1921 to be inadmissible in evidence.
5. The learned advocate for the respondents has supported the judgment of the Court below regarding, the finding as to the inadmissibility of the letter in question and his also submitted that the finding as to limitation was incorrect.
6. As regards the question of limitation it is no doubt true, as contended by the learned advocate for the appellant, that the question depends on facts and that the learned Subordinate Judge confined the parties to evidence on issue 3; therefore the plaintiff was unable to give evidence relating to any matter with reference to issue 5. We therefore cannot accept the finding of the learned Subordinate Judge as regards limitation, and as we are remanding the case, it will be open to the parties to give evidence on the question of limitation and to get a fresh finding by the Court below.
7. The letter of 3rd February 1921 is, in our opinion, not an agreement to lease within the meaning of the term "agreement to lease in the Registration Act as interpreted by their Lordships of the Privy Council. At p. 494 (of 47 Cal.) of the case of Hemanta Kumari Debi v. Midnapur Zamindari Co. A.I.R. 1919 P.C. 79 their Lordships of the Privy Council have stated as follows:
With regard to the first, the Registration Act of 1908 provides that "lease" includes an agreement to lease and by Section 17 enacts that leases must be registered, the penalty for non-registration being imposed by Section 49, which provides that, if not registered no document shall affect immovable property which it comprises or be received as evidence of any transaction affecting such property. If the document in question can be regarded as a lease Within the meaning of this definition it could not be received in evidence. Their Lordships are of opinion that it cannot be so regarded. An "agreement for a lease," which a lease is by the statute declared to include, must, in their Lordships' opinion, be a document which effects an actual demise and operates as a lease.
8. The learned Subordinate Judge has reproduced, the document and it is perfectly clear that on the happening of a contingent event within six months and upon a certain indeterminate act, a lease would be granted to the plaintiff. On the date of this letter the property, or a. part thereof, was under a zarpeshgi lease in favour of Jhullar and a suit was pending against Jhullar. Payment was to be made by the plaintiff to Jhullar, or to the plaintiff if Jhullar admitted the claim of the plaintiff, and then a proper receipt or satisfaction of the decree was to be issued to Bageshari Dayal, whereupon Lachh man Singh could claim a lease to be executed in his favour. A document which provides for all these, in our opinion does not amount to "an agreement to lease within the meaning of the Registration Act, as interpreted by their Lordships of the Privy Council in the case referred to above. We are therefore of opinion that the finding on issue (b) by the learned Subordinate Judge should be set aside, which we hereby do. We remand the case under the provisions of Order 41, Rule 23 and direct that all the issues which were framed by the Court below may be determined according to law, and that the suit be re-admitted under its original number and proceeded with The plaintiff-appellant is entitled to the costs of this appeal. Costs in the Court below will abide the directions of that Court.