JUDGMENT Sinha, J.
1. This is defendant's appeal arising out of a suit for possession over the site of certain houses specified in the plaint. The plaintiffs claimed to be the owners of the site under two sale deeds, executed by the erstwhile owners, Syed Mahmudul Husain and Mir Latafat Ali on 3rd September 1909 and 4th August 1910.
2. The plaintiffs' case was that on 16th August 1910, Rajjab, the father of the appellant, Shubrati, and a number of persons had executed an agreement in favour of the plaintiffs, whereby they agreed that they and their descendants would vacate the land and remove the building materials, when, ever called upon to do so, and they further agreed that on receipt of the price they would give the materials to the plaintiffs. The plaintiffs further contended that they gave the defendants notice in 1936 to vacate the land, but they have not done so yet. On these allegations, the present suit was instituted in the year 1940.
3. The defence, in brief, was a denial of the plaintiffs' title as also of the agreement. The bar of 12 years' limitation was also pleaded. The main contention of the appellant was that the agreement was a fictitious transaction secured from one Rajjab, who was not Rajjab the father of the appellant but was some fictitious person, that the house had been rebuilt at a cost of RS. 2000 and that the suit was barred by estoppel and acquiescence.
4. The learned Munsif held that the plaintiff's ownership was established. In the earlier litigation of 1988 the appellant had himself admitted the plaintiffs' title. He discarded the defence that the agreement was secured fraudulently from one Rajjab not the father of the plaintiff (sic defendant) but some other Rajjab. He held further that the transaction amounted to a lease within the meaning of Section 103, T.P. Act. The plea of estoppel and acquiescence was rejected by him. There was another plea raised in defence that the platform in dispute was an imam chowk. The learned Munsif rejected even this plea on the ground that that platform had been taken over by the Municipality under a scheme to construct a road from Farrukhabad to Makrandnagar. He decreed the suit and directed the defendants to remove the materials of the disputed buildings within four months of the date of the order and to restore the site to the plaintiffs free from the buildings and on their failure to carry out the directions within the time allowed, the plaintiffs "shall be entitled to possession over the site together with the buildings on payment of Rs. 586-4-0.
5. The defendants went in appeal and the learned Civil Judge has affirmed the decree of the learned Munsif. He has agreed with the trial Court that the plaintiffs were the owners of the site and that the agreement was a good agreement, not tainted by any fraud. He has distinctly found that Rajjab, who was the executant, was the father of the appellant, and not some other person. He, however, disagreed with the learned Munsif as regards the nature of the transaction of 1910. He held that it was not a lease within the meaning of Section 105, T.P. Act, but he held that it was admissible in evidence to show the legal position of the parties, and the defendant's position will as such be that of a lessee.
6. Defendant 12, Shubrati, has come before me in second appeal and it has been strenuously contended by his learned Counsel that the deed of 1910 should be ruled out of consideration altogether. The learned Counsel for the plaintiffs, however, contends that even though it may not be a formal document in the nature of a lease, it is still admissible in evidence to show the nature of the defendant's possession and that possession will, as the learned Civil Judge has found, be that of a lessee.
7. The learned Counsel for the respondents has relied upon Anand Sarup v. Chawwa ('16) 3 A.I.R. 1916 All. 241, Nand Ram v. Saraj Husain Khan ('38) 25 A.I.R. 1938 All. 42, Mirza Mohammad Hasan v. Buddu ('38) 25 A.I.R. 1938 All. 32 and Ganga Sahai v. Badrul Islam ('42) 29 A.I.R. 1942 All. 330. The first two cases have, to my mind, no application. The last two cases are no doubt, in some respects in his favour. The learned Judge in the earlier case in Mirza Mohammad Hasan v. Buddu ('38) 25 A.I.R. 1938 All. 32 referred to the case in Nand Lal v. Hanuman Das ('04) 26 All. 368 where in a suit for ejectment from a house of which the defendants were alleged to be tenants under a registered rent agreement it was found that the so-called agreement was only a sarkhat given by the defendants to the plaintiffs. Their Lordships held that the sarkhat or qabuliat did not amount to a lease within the meaning of Section 107, T.P. Act. I have carefully read the case in 26 ALL. 8686 but find nothing in it to support the respondents. I also find that the interpretation placed upon it by the learned Judge in Mirza Mohammad Hasan v. Buddu ('38) 25 A.I.R. 1938 All. 32 is, speaking with the utmost respect, not really borne out by it. The facts of that case were briefly these:
8. One Nand Lal and another brought a, suit for ejectment against the defendants from a house of which they alleged them to be their tenants under "a rent agreement dated and registered on 19th May 1882," stating that notice had been given in accordance with the terms of the lease. They also claimed arrears of rent to the extent of Rs. 304. The defence was that they had obtained a "fresh registered rent agreement" on 16th April 1898 and that the rent agreement" set up by the plaintiffs had been cancelled. The Court of first instance found that the defendants held under a "sarkhat" given by the defendant Hanuman to the plaintiffs with the plaintiffs' assent; under this document the defendants were entitled to hold for 20 years and could not be ejected. The claim for arrears of rent was decreed. The lower appellate Court dismissed the appeal. It found that the defendants' document of title was the "sarkhat" or "qabuliat" set up by them which had been duly registered with the knowledge and apparently with the assent of the plaintiffs. The plaintiffs appealed to the High Court on the ground that "in the absence of a document of the kind required bys. 107 of Act 4[iv] of 1882" upon the facts found the transaction in question did not amount to a lease in law and transferred no property to the respondents. Blair J. decreed the suit and held
(a) The defendants allege that they cannot be ejected because there is still in existence and in effect a lease under which they hold. The evidence which they produced of such a lease was a qabuliat signed and registered by one of them. It is found that plaintiffs were fully aware of the new qabuliat and gave consent by being present at the time of registration.
(b) The most emphatic oral agreement proved up to the hilt 6r; admitted by the plaintiffs would not make a lease within the meaning of para. 1. In the case of sales under Section 54 the same words are used, namely such transfer can be made except in certain cases, only by a registered instrument." Could it be contended for a moment that a document accepting property so said to be sold or devised by the owner of the property would amount to a registered instrument?
In this case there is no document purporting to transfer property. There is, however, something in the nature of a recital in the qabuliat to that effect, which may have been assented to by the plaintiffs ; but in my opinion that would not make a registered instrument within the meaning of Section 107, T.P. Act... I would decree the appeal and varying the decree of the lower Court, decree the whole of the plaintiffs' claim.
9. this judgment was based upon a judgment of Edge C.J. and Burkitt J. in Hem Chandra v. Ram Bharosay L.P.A. No. 72 of 1897 delivered on 16th March 1898. Banerji J. while not wholly differing from Blair J. struck a mild note of dissent on the ground - as I read the judgment - of expediency. Says he:
Having regard to the fact that it is a common practice in these Provinces to treat a qabuliat as the instrument creating a tenancy, and that a ruling such as that contended for by the appellants may unsettle title, I do not desire to express any opinion upon the first question raised in this appeal.
10. The learned Counsel for the appellant contends that the above does not amount to Striking even a mild note of dissent. Perhaps, he is right. The important thing to bear in mind is that the existence of the second deed, which was in the nature of a qabuliat and not a lease and which might have put the plaintiffs out of Court was not taken into consideration by Blair J. The present is a converse case. In that case it was the tenant who wanted to rely upon a deed and who was not allowed to do so by Blair J. in agreement with Edge C.J. and Burkitt J. In the present case, it is the landlord who wants to rely on a deed and has been allowed to do so by the Courts below. There is no dobut, in my opinion, that on the authority of Nand Lal, the plaintiffs are not entitled to do so. The learned Counsel for the respondents contends that Ismail J. in Mirza Mohammad Hasan v. Buddhu ('38) 25 A.I.R. 1938 All. 32 relied upon this case only f6r the proposition that the transaction did not amount to a lease within the meaning of Section 107, T.P. Act. I do not agree. The portion of the judgment which refers to the case in Nand Lal v. Hanuman Das ('04) 26 All. 368 winds up with the following sentence: "Nonetheless, their Lordships ejected the tenants from the house." It is manifest that Blair J. ruled out the deed of 1898 as of no legal value and in this view, he was supported by Edge C.J. and Burkitt J. Banerji J. also merely took it into account for certain reasons not strictly legal and did not think it proper to enter a dissent from Blair J. If this is so and I must, in view of what I have said above, hold that this is so, the very foundation of the judgment of the learned Judge in Mirza Mohammad Hasan v. Buddhu ('38) 25 A.I.R. 1938 All. 32 goes. I now come to the case in Ganga Sahai v. Badrul Islam ('42) A.I.R. 1942 All. 386. To my mind, if I may say so very respectfully, this case suffers from the same infirmity. Bajpai J. accepted the view of Ismail J. in the earlier case as being correctly based upon the case in Nand Lal v. Hanuman Das ('04) 26 All. 368. In the view which I have taken I must, with the utmost respect, dissent from Bajpai J. also. The other points in that case do not arise in this case.
11. Reliance has also been placed on Pyare Lal v. Ram Swarup ('44) 31 A.I.R. 1944 All. 221. Even the learned Counsel for the respondents admits that the facts of this case are different from those referred to be. fore. Besides their Lordships were not considering a case of ejectment. They were only dealing with a case of compensation for use and occupation of the land. I need hardly say that different considerations prevail in such class of cases. If the deed of 1910 is, therefore, ruled out of consideration, the parties will be relegated to status quo ante and the defendant cannot be ejected when as he distinctly says in his written statement - a stand which was not repudiated by the plaintiffs - that the constructions were made with the consent of the erstwhile owners. No other point has been pressed before me. I allow the appeal, set aside the decrees of the Courts below and dismiss the plaintiffs' suit with costs in all Courts.