JUDGMENT Mohammad Ismail, J.
1. This is a plaintiff's appeal arising out of a suit for ejectment and recovery of arrears of rent. The plaintiff came to Court on the allegation that he was the proprietor of a kothri No. 49 (old number) situate in ahata No. 3 (corresponding to old No. 2) in mohalla Badshahi Mandi, Allahabad; that the defendant's father Kanhai was given this kothri on lease dated 6th February 1890, which was executed by Kanhai in favour of Mirza Hasan Ali, the father of the plaintiff, on a rent of Re. 1 per annum; that it was one of the stipulations in the aforesaid lease that the lessee will be liable to ejectment on 15 days notice; that Kanhai remained in possession of this kothri as a lessee till his death and thereafter the defendant succeeded his father; that the defendant had withheld the payment of the annual rent since February 1927, and that he now denies the title of the plaintiff to the property in suit. Hence the suit for the ejectment of the defendant from the kothri described at the foot of the plaint and for recovery of Rs. 7 as arrears of rent. The defendant contested the suit and denied that the plaintiff or his predecessors in. interest were the owners of the property in suit. He claimed to be the full owner of the site and the kothri and denied his liability as lessee to the plaintiff. The learned trial Court decreed the suit in toto. On appeal the learned Civil Judge reversed the decree of the trial Court and dismissed the suit. The propriety and the legality of the judgment of the Civil Judge is assailed on a variety of grounds in this Court. Before dealing with those points, it will be convenient to give a short history of this kothri.
2. It appears that the kothri No. 49 and a number of other kothris are situate inside an ahata in the town of Allahabad. The entire ahata was owned prior to 1885 by a lady named Mt. Bibi Jan. This lady transferred certain properties, including the kothri in suit, in favour of Mir Najaf Ali under a deed of gift dated 13th December 1885. Mir Najaf Ali executed a sale deed on 14th November 1889 in respect of this kothri and some other properties in favour of Mirza Hasan Ali father of the plaintiff. On the death of Mirza Hasan Ali apparently there was a partition amongst his heirs and the property in suit was allotted to the share of the plaintiff. It has been strenuously argued by the learned Counsel for the appellant that the learned Civil Judge had erred in allowing the defendant to set up an entirely new case in the Court of Appeal without amending his written statement. As I have stated before, the case of the defendant in the written statement was that he was the full owner of the building and the site. He had nowhere pleaded that he was a licensee. The learned Judge however held that the defendant had been occupying the kothri as a licensee and he was not liable to ejectment as long as he continued to occupy it. In the earlier part of his judgment he says:
The position therefore is that the site of the kothri belonged to the plaintiff's predecessor-in-interest while the kothri itself was built by the defendant and his father over 50 years ago on the same site granted to him for the purpose. The appellant therefore was a licensee of the land.
3. In my judgment, the learned Judge should not have allowed the defendant to change his case and claim to be the licensee, I cannot therefore accept the above quoted observation as a finding of fact on the issue involved in this case which precludes me from examining the case on the merits. The plaintiff relies on a kabuliyat dated 6th February 1890 executed by Kanhai, in which the following passages occur:
I have been occupying the kothri from before on behalf of the vendor under a sarkhat of rent agreement and in lieu of forced labour etc. ...and do covenant that I shall continue to pay a sum of Re. 1 per annum as rent for kothri No. 49 occupied by me, situate in the enclosure aforesaid...whenever the proprietor of the house wants to enhance the rent or have the house vacated, he should inform me 15 days before, so that I might vacate the house during that period or continuo to occupy it under a fresh sarkhat on enhanced rent.
4. The plaintiff alleged that in view of the stipulation contained in this document, it is not open to the defendant to set up a title hostile to the plaintiff. The learned Judge has entirely ignored this document on the ground that it does not create a valid lease. Reliance has been placed by the learned Civil Judge on a ruling reported in Kedar Nath v. Shankar Lal (1924) 11 A.I.R. All. 514 in which a number of cases dealing with this question have been discussed at length. The judgment was delivered by Stuart J, and the learned Judge on a review of all the authorities came to the following conclusion:
For these reasons, taking the view of the law which I consider to be the view that has always been accepted in this Court, and finding no reason to refer the point to a Full Bench, I should answer the District Judge's question in the negative and decide that a registered kabuliyat executed by the person occupying the premises and accepted by the person owning the premises la not sufficient to bestow title upon the person occupying the premises and can in no way be considered a lease as defined in Section 105, T.P. Act (Act & of 1882).
5. All that has been decided in the above ease is that a kabuliyat which is a registered document does not create a valid lease for the simple reason that the landlord is no party to the kabuliyat and any statement made by the tenant cannot have the effect of conveying the property of the landlord to the tenant. I am bound be hold therefore that the kabuliyat of 1890 relied upon by the plaintiff in this case does not operate as a lease, but it does not follow that the document is entirely in. admissible against the executant himself. The defendant has never alleged that this document was obtained under coercion or undue influence. It has been legally proved in this case, and in my opinion the statement of Kanhai can be used against Kanhai and his successor. Again it does not follow that merely because there is no valid lease executed by the plaintiff's predecessor, therefore the defendant can not be ejected from the land. In Nand Lal v. Hanuman Das. (1904) 26 All. 368, the plaintiffs had sued to eject the defendants from a house of which they alleged the defendants to be tenants under a registered rent agreement. It transpired that there was only a sarkhat given by the defendants to the plaintiffs, but the plaintiffs never executed any document. It was held that the kabuliyat, though registered, could not be considered as lease of immovable property by a registered instrument within the meaning of Section 107, T.P. Act. Nonetheless, their Lordships ejected the tenants from the house. In Sheo Karan Singh v. Parbhu Narain Singh (1909) 31 All. 276 a Full Bench of this Court declined to decide this matter, but granted relief to the plaintiff and held:
The only ground of appeal which has been pressed in argument before us is the first, namely that a kabuliyat without a patta does not create a valid lease of immovable property. As to this we express no opinion inasmuch as we find that under the circumstances the plaintiff is clearly entitled to recover compensation for use and occupation.
6. The kabuliyat of 1890 clearly indicates that the defendant occupied the site with the permission of the zamindar on the distinct understanding that he would vacate the land whenever the zamindar so desired and Have 15 days' notice to the tenant. The learned Civil Judge has relied upon two documents in support of his conclusion. The first is a deed of gift of 1885. In this the kothri in dispute is described as Kothri No. 49 in which Kanhai Chamar resides on behalf of Najaf Ali and the land of which belongs to and is in possession of Najaf Ali.
7. In the sale deed of 1889 the kothri is described as Kothri No. 49 in which Kanhai Chamar resides and the land of which is owned and possessed by the vendor.
8. In my opinion, the description in the two deeds in no way militates against the subsequent document which came into existence in 1890. Having regard to the contents of the three documents mentioned above, I have no doubt that Kanhai Chamar was allowed to take possession of the site of the kothri and he constructed a hut or a house over it on the distinct understanding that he will vacate it when the zamindar gave him notice. The mere fact that the kabuliyat of 1890 does not create a valid lease will not render this document inadmissible in evidence. It contains a statement of Kanhai against his own interest. It is true that it is no more than an admission which is capable of rebuttal; but no rebutting evidence has been offered on behalf of the defendant.
9. The learned Civil Judge has relied upon Section 60, Easements Act, and has held that the grantor is not permitted to revoke the license, as the licensee acting upon the license has executed a work of a permanent character and incurred expenses in the execution. As I have held above, the learned Civil Judge should not have allowed the defendant to set up a case of license. Apart from this, there are other objections in entertaining this newly set up plea. On the record there is not sufficient evidence to find out the exact age of this construction. All we do know is that the kothri was in existence in 1885. For aught we know, it may have been in existence prior to 1882 when the Easements Act came into force. If this had been one of the issues framed by the trial Court, it would have been open to the plaintiff to say that the provisions of the Basements Act do not apply to this case, Again, I have not been referred to any provision of law which precludes a party from binding itself to surrender land, although there may be a construction of a permanent character standing thereon. In ordinary practice 30 and 90 years' leases are very common. In this case the defendant was holding the site on payment of a nominal rent of Re. 1. The kothri is only a kutoha building and has not cost a very substantial I amount to the defendant or his predecessor. At any rate it is not necessary for me to speculate on this point. Unless the defendant can show any reason for avoiding the statement of his predecessor contained in the kabuliyat of 1890, I am bound to hold that he took possession of the site on the terms mentioned in the kabuliyat. Having regard to all the circumstances, I think that the learned Civil Judge has not coma to a correct conclusion in holding the defendant to be entitled to retain possession of the land permanently.
10. The learned Counsel for the appellant has referred to Section 59, Easements Act, and has argued that his client's predecessor being a transferee was not bound by the license. In my opinion it is not necessary to discuss this point at length. All I need say is that this section does not help the appellant. If the defendant in fact is a licensee, and acting upon the license he has built the kothri, it will not be open to the transferee of the licensor to revoke the license: see Mathuri v. Bhola Nath (1934) 21 I.A.R. All. 517 at p. 519. The learned Counsel for the appellant has also relied upon a ruling of their Lordships of the Judicial Committee reported in Krishna Prosad Lal v. Baraboni Coal Concern Ltd. (1937) 24 A.I.R. P.C. 251 and has argued that the defendant is estopped from denying the title of the plaintiff during the continuance of the tenancy. The following observation from the head-note has been relied upon:
The rule of estoppel contained in Section 116, Evidence Act, is not limited to the case where the tenant is let into possession by the landlord, but applied equally to the case where the tenant, being already in possession (e.g. as a tenant under one person), accepts a tenancy from another. In such case too he is estopped from denying the title of the latter at the creation of the tenancy.
11. The argument is that Kanhai having obtained possession of the land for the purpose of constructing a kothri, became & tenant of Najaf Ali or his predecessor. When the property was transferred to Mirza Hasan Ali, there was no new tenancy created, but as the defendant continued in possession of the land as a tenant, he is nonetheless estopped from denying the title of the plaintiff. I think there is much force in this argument, but in view of my finding in the earlier part of the judgment, it is not necessary to decide this matter. In the result, I hold that the plaintiff is proved to be the owner of the site, but not of the materials standing thereon. Under the deed executed by the defendant's predecessor, the defendant is bound to vacate the land when required to do so by the plaintiff. I therefore set aside the decree of the learned Civil Judge and restore that of the learned Munsif and direct that the suit be decreed with costs. The defendant is given two months' time to vacate the premises and remove the materials. In default, the plaintiff will be entitled to have the materials removed through Court. Leave to appeal in Letters Patent is granted.