1. The facts involved in this second appeal are very simple. The plaintiffs, who are the appellants before us, let out two shops to the respondent on foot of a kabuliyat executed by the respondent on the 10th of April, 1922, The term fixed was two years. The respondent gave a notice to the appellants, saying that he was vacating the premises and left them. He paid a portion of the rent. The plaintiffs claim rent for the entire two years after giving credit for the rent actually paid.
2. The respondent pleaded that he was hot liable to pay the rent after he vacated the premises and he offered to pay the balance due by him, up to the date of his leaving.
3. The first Court decreed the suit in its entirety. But the lower appellate Court dismissed it, except for the amount admitted and held that the respondent could not be forced to pay the rent for the entire period of two years. The learned Judge relied on the case of Kedar Nath v. Shankar Lal : AIR1934All514 .
4. In this Court the only ground of appeal taken was that in spite of there being only a kabuliyat, a void contract for lease did exist. In argument this point is given up. But it is urged that on the doctrine of part performance the plaintiffs are entitled to succeed.
5. The learned Counsel for the appellants has argued that it was in good faith that the plaintiffs omitted to execute a lease in favour of the respondent and on that account, they should not be deprived of the benefit of the contract.
6. In my opinion the point now taken should not be allowed to be urged. As indicated above, the doctrine of part performance can be applied only if the proper facts were before us. There is no evidence under what circumstances the appellants omitted to execute the lease. If the question had been tried and if it had been found that they deliberately omitted to execute a lease in favour of the respondent, it could certainly not be urged with success by the appellants that the doctrine of part performance should be invoked in their favour. I am not prepared to allow this ground to be taken for the first time in second appeal, specially as sufficient materials are not before us for the disposal of the contention.
7. I would dismiss the appeal with costs.
8. I concur, Even though the question, whether the plaintiffs can sue upon the incomplete or inchoate lease may be solely a question of law, nevertheless as it was not raised in either of the first two Courts I consider that it is improper to allow the question to be raised in second appeal. The evidence was not tendered from the point of view of a claim based on part performance of a contract and it is undesirable to consider such a claim on the basis of evidence tendered and recorded for another purpose.