John Stanley, Kt., C.J., Banerji and Aikman, JJ.
1. In the suit out of which this appeal has arisen His Highness the Maharaja of Benares sued for arrears of rent, relying on a kabuliat, dated the 7th of December 1899, executed by the defendants and registered on the 8th of December 1899. By the kabuliat the rent reserved for the holding was an annual sum of Rs. 4,701 and the term of the lease was nine years. The defendants were let into possession of the property on the faith of the Kabuliat. No lease was executed by the plaintiff. In the plaint the plaintiff sets out the terms of the kabuliat and says that in accordance with the agreement entered into thereunder the gum which he claimed was due. The defendants in their written statement did not deny that a tenancy subsisted between them and the plaintiff, but they raised various objections to portions of the claim. In a supplementary written statement, however, they pleaded this defence, namely that 'a mere kabuliat without there being a lease is not sufficient to constitute a contract. Hence the suit, merely on the basis of tie kabuliat, is improper and not correct.' We are not clear as to the meaning of this difference but we take it from the argument which has been addressed to us that the defendants contend that by reason of the fact that a patta or lease was not executed by the plaintiff, he cannot recover any rent in respect of the use and occupation of his land by the defendants. The Court below held that the defendants executed the kabuliat in favour of the plaintiff' and had it registered and that they came in possession under it and that consequently the execution of the lease was not necessary in order to entitle the plaintiff to maintain the suit. We think that the claim of the plaintiff may be treated as one for compensation for The use and occupation of the land and in view of the fact that the defendants entered into and have continued in occupation of the land, with the plaintiff's consent, they undertaking to pay rent therefor, they cannot be heard now to say that they are not liable for rent for use and occupation. They certainly cannot be treated as trespassers and it is admitted that they heretofore have paid rent to the plaintiff in respect of their occupation of the land in question. It is not their case that they are trespassers. Under these circumstances we fail to discover on what ground they can resist the plaintiff's claim to recover compensation for the use and occupation of his land.
2. Then the question arises as to the measure of compensation. We have the means of determining that by reference to the kabuliat which was executed by the defendants in favour of the plaintiff. They agreed to pay the rent claimed. This rent the Court below has allowed, we think rightly.
3. The only ground of appeal which has been pressed in argument before us is the first, namely that a kabuliat without a patta does not create a valid lease of immoveable 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.
4. In view of the fact that the defendants have been in occupation of the land with the consent of the plaintiff, and of the fact that the rent was fixed by the kabuliat which has been given in evidence, we think there is no force in the first ground of appeal. The learned vakil for the appellants has abandoned the second, third and fourth grounds of appeal. We therefore dismiss the appeal but we think that having regard to the fact that the plaintiff has neglected to take the precaution of executing, in favour of his lessees, a proper lease he is not entitled to any consideration in the matter of costs. We therefore allow no costs to either party.
5. We express no opinion as to the correctness of the rulings which were relied upon by the learned vakil for the appellants, namely in the cases of Nand Lal v. Hanuman Das (1904) I.L.R. 23 All. 398; Kashir Gir v. Jogendro Nath Ghose (1902) I.L.R. 27 All. 136; Beni v. Puran Dass (1904) I.L.R. 27 All. 190 and Tur of Sahib v. Esuf Sahib (1907) I.L.R. 30 Mad. 322.