1. This is an appeal by the sole plaintiff Nawabzada Muhammad Liaqat Ali Khan whose suit was dismissed by the Additional Civil Judge of Muzaffarnagar. The suit was originally filed against Ajudhia Prasad as principal defendant and Murari Lal, Babu Ram and Sita Ram as his mortgagees. The plaint was subsequently amended and three defendants were added, Nawabzada Muhammad Sadaqat Ali Khan, Lala Attar Sen and Jai Prakash, the last being the son of defendant Ajudhia Prasad. It was alleged in the plaint that defendant Ajudhia Prasad, his father, his grandfather Fakir Chand and his great grandfather had been in the service of the estate of the plaintiff of his brothers and their ancestors, in which the land in suit was situate and, in collusion with other servants of the estate, defendant 1 and his ancestors, without the knowledge of the plaintiff, of his brothers and of his ancestors, had entered into possession of the land in suit as tenant during the year 1898, having themselves fixed a small amount of Rs. 15 as annual rent which they deposited in the treasury of the plaintiff and his predecessors though no lease was granted on behalf of the owners of the estate. In 1927 the payment was stopped by defendant 1 and his father and on the facts mentioned even if defendant 1 had any right it was extinguished. The reliefs claimed were ejectment of the defendants, a certain sum on account of rent by way of damages, future damages and costs. Although there is a mention of defendant 1 and his ancestors entering into possession 'as tenant,' seeing that it is also alleged that this entry was without the knowledge of the owner or owners of the estate, the plaint really alleges that defendant 1 was a trespasser who was liable to ejectment and to the payment of damages for use and occupation, not for rent as a tenant.
2. Learned Counsel has, however, argued that in any case the suit should be decreed because defendant 1 is a tenant holding from month to month, not the holder of a permanent lease as alleged in defence. The learned Additional Civil Judge held that there was no valid perpetual lease but he dismissed the claim for possession on the ground that it was barred by estoppel and he gave a decree for arrears of rent. Learned Counsel for the respondents finds himself unable to support the decision that there is estoppel but supports the decision that the suit in so far as it is for ejectment must fail. The learned Additional Civil Judge has relied on certain eases in holding that there was an estoppel. The first case is Ramsden v. Dyson (1865) L.R. 1 E. & I.A. 129 but he has failed to notice that while the vice-Chancellor had held that the plaintiff was estopped in equity from bringing ejectment against defendant, his decision' had been reversed in the House of Lords. The Civil Judge also relied on Beni Ram v. Kundan Lal ('02) 21 All. 496 a decision of their Lordships of the Privy Council but he has failed to notice that their Lordships reversed the decision of the Courts in India which had dismissed the suit and decreed the suit finding that the onus of establishing sufficient cause for an equitable estoppel had not been discharged by the tenant in that instance.
3. In this case the learned Additional Civil Judge found that in January 1897 the grandfather of defendant 1 asked for permission to fill up the pond which existed on the disputed land and eventually on 31st December 1897 Nawab Rustam Ali Khan, the father of the plaintiff, sanctioned a grant of the land in perpetuity to Fakir Chand, grandfather of defendant l, as prayed for by the Mutamid of the estate' if a rent of Rs. 15 per annum was accepted. Learned Counsel for the appellant has urged that the Nawab's signature has not been proved but we find that defendant 1 has identified the signature while the plaintiff did not deny it but could only say that he never saw his father make a signature like that of this document. We agree with the learned Civil Judge that the signature was of Nawab Rustam Ali Khan. On this order by the Nawab, some servant of the estate wrote that if Fakir Chand executed a rent agreement stipulating to pay Rs. 15 per annum, a rent deed might be obtained from him and the land be given to him. What followed next is that on 12th January 1898 Fakir Chand executed a kabuliat or counterpart of a lease which was presented for registration by Ramzan Beg who was described by the Sub-Registrar as an employee of the Karnal Estate. Fakir Chand in this lease said that he had taken the land aforesaid for purposes of building a house on an annual rent and so long as rent was paid the zamindar would have no right to get the house vacated.
4. It is settled law that a kabuliat is not a lease at all. Being executed by the person who would be the lessee, not the lessor, if there was a lease, it is not executed by the person who can make the transfer so it is not even an invalid lease but it is no lease at all. Learned Counsel has urged that as in his written statement defendant 1 says that the ancestor of the plaintiff let out the land to the ancestor of defendant 1 on rent under a perpetual rent deed, defendant 1 has admitted that he is a tenant and as he has failed to establish that he is a permanent lessee, he is entitled to ejectment. In our opinion, one cannot divide this so-called admission into two admissions, the first that defendant 1 was a lessee which should be regarded as true and the second that the lease was a permanent lease which was incorrect. The defendant alleged that he was a permanent lessee and he may have thought that he was because his predecessor executed a kabuliat but in law he was not. Learned Counsel for the, appellant has referred us to Nand Ram v. Saraj Hussain Khan : AIR1938All42 a case in which it was found that land had been let by the plaintiff to the defendant and it was held that the defendant, unless he adduced evidence to rebut the presumption arising under Section 106 in favour of the lessor, was bound to be treated as a year to year or month to month tenant as the case may be and the fact that he held under a building lease would not prevent the presumption arising in favour of the lessor. That case was very different from the present one because it was not known what the parties had agreed upon so the Court was asked to presume something. In this case, we know what offer was made by Nawab Rustam Ali Khan and accepted by Fakir Chand, so no question of presumption comes in. A person can prescribe to a limited interest as well as to a permanent interest: vide Thakore Fatesingji Dipsangji v. Bamanji Ardeshir Dalai ('03) 27 Bom. 515 and Rajai v. Behari Lal ('29) 115 I.C. 141 (All.) a decision of this Court.
5. In the latter case, the plaintiffs' predecessor-in-title put the defendants in possession of a house under an agreement that the latter would be entitled to occupy the house on condition of their keeping the same in proper repairs, and though the agreement was unregistered the defendants remained in possession in terms of the agreement for more than 12 years. It was held that the unregistered agreement could be looked into to ascertain the assertion of title made by the grantee in entering upon the house and the defendants acquired by adverse possession the title which the agreement, if registered, would have conferred upon them. In the present case, the kabuliat can be looked into to ascertain the assertion of title made by Fakir Chand when he entered upon the land and this assertion was made in the year 1898. Had there been a registered lease, Fakir Chand would have been a perpetual lessee but as there was no such lease, seeing that he and his successors-in-interest remained in possession for more than 12 years, they acquired the title which the agreement, if accompanied by a registered lease, would have conferred upon them. We think that it is immaterial in this case whether Fakir Chand in the expectation of a valid perpetual lease entered upon the land without being admitted to it by or on behalf of Nawab Rustam Ali Khan or whether he was actually admitted by or on behalf of the Nawab. In the former case he was a trespasser, in the second case he might be a licensee and then the licence would be for the erection of a house and for occupation of the house and site in perpetuity. Neither alternative will entitle the plaintiff to eject the defendants by this suit. In the present suit the plaintiff could only eject the defendants by proving that they were tenants holding from month to month or from year to year and he has failed to do so. We find, therefore, that the decision of the learned Additional Civil Judge refusing the relief of possession was correct and we, therefore, dismiss this appeal with costs.