Shiv Dayal, J.
1. The respondent brought a suit against the appellants for an agricultural land on the basis of patta granted by the defendants in favour of the plaintiff o 23-1-1946. The patta was registered. The plaintiff, as advised, gave a notice to the defendants on 26-3-1946 to deliver possession to him. Since the defendants did not deliver possession to him he instituted a suit under Sees. 325 and 326 of the Qanoon Mal before the Tahsildar, Bhilsa. That matter went up to the Board of Revenue. The plaintiff did not succeed'there because it was held that he had not been given possession and as such he could not bring a suit under Sec. 326 or 325 of the Qanoon Mal.
The plaintiff then brought this civil suit for possession and also claimed mosne profits. In the alternative the plaintiff claimed a decree for the return of consideration for the patta viz. Rs. 495/-. The suit was instituted on 22-10-1954. The defendants resisted the suit inter alia on the ground that the civil Court had no jurisdiction to try it; that the suit was barred by time; and that the matter was res judicata,
2. The learned trial Judge held that the suit was competent and that it was not res judicata, but it was dismissed as time barred, by applying Article 113 of the Limitation Act.
3. On appeal the Additional District Judge Bhilsa held that Article 144 of the Limitation Act applied and the first prayer, but not the second prayer, made in the suit was within limitation. He also affirmed the decision of the trial Judge on the other two questions. He, therefore, set aside the decree of the trial Judge and remanded the case for trying the remaining issues.
4. In this second appeal against the order of remand Shri Patankar contends that the Civil Court has no jurisdiction to try the suit. He relies on Section 377(1) of the Qanoon Mal, which reads thus :
^^tks nkos c:; dkuwu gktk dkfoy lekvr vnkyr ekydjkj fn;s x;s gS og rkcs vgdke nQk 313 vnkyr nhokuh esa lekvr u gksxs] tc rd fdmudh lekvr fd;s tkus dh ckcr dkuwu gktk esa lkQ fgnk;r ntZ u gksA**
The argument is that the plaintiff could bring this suit under Ss. 325 and 326 of the Qanoon Mal. I am of the opinion that in the first place, the defendants cannot raise the objection because when the plnintiff went to the Revenue Courts, he was not heard on the ground that he had not been in possession and, therefore, he could not bring a suit under those sections of the Qanoon Mal. The learned counsel makes a distinction on the ground that the revenue suit which was instituted by the plaintiff was on the basis of notice and not on the basis of a patta. This argument is not tenable because at the very outset the Board of Revenue mentioned in its judgment, the Patta dated 23-1-1946 and an earlier patta.
There it was urged by the defendants that the suit could not be decreed just because of the patta and accepting that contention the Board held that since the possession had not been delivered to the plaintiff, he could not bring the suit under Section 325 or 326 of the Qanoon Mal and it was further observed that if possession had not been given to the plaintiff he should have taken proceedings for that purpose. Having successfully contended before the Revenue Court that the suit under Section 325 or 326 of the Qanoon Mal was not competent defendants cannot be allowed to approbate and reprobate. They cannot challenge the jurisdiction of the Civil Court on the ground that the plaintiff had the remedy under Sections 325 and 326 of the Qanoon Mal.
5. That aside, I am clear in my mind that the present suit as instituted by the plaintiff could not be instituted either under Sec. 326 or 325 of the Qanoon Mal. Both these sections, contemplate physical possession of the plaintiff first and then his dispossession by the defendants. Here the plaintiff's allegation is that he was granted a patta but not given possession of the land. Such a suit could be instituted in the Civil Court only. Sec. 8 of the Specific Relief Act is very clear. I, therefore, agree with the Courts below that the Civil Court had jurisdiction to try this suit.
6. The question of res judicata really does not arise on the above finding. The Board of Revenue refused to hear the plaintiff. He was non-suited on the ground that the suit was not competent.
7. Shri Patankar then maintains that the suit is barred by time. His argument is that if possession was not delivered to the plaintiff when the patta was given to him this suit for possession is really one for specific performance and Article 113 of the Limitation Act is attracted. And since it was instituted after three years of the execution of the patta, it is beyond limitation. I find myself unable to accept the contention. Article 113 applies to a suit for specific performance of a 'contract'. The question whether it is Article 113 or Article 144 which applies to such case depends upon whether the transaction is a 'lease' itself or a mere 'agreement to lease'. If it is a mere, agreement its specific performance will be governed by Article 113, but in case it does not fall within the ambit of Article 113, the residuary Article 144 must apply.
In the former case the defendant merely agrees to complete the title of the plaintiff to the subject matter of the agreement. But where a lease is granted the plaintiff comes to the Court for the vindication of his right to be left undisturbed in his enjoyment of the property, which is right available against the whole world. As soon as a lease is granted an interest in the property is transferred; there is a present demise. It is a matter of construction in eachcase whether an agreement is merely an executory one or affects a demise in praesenti so as to create an interest in the property. The distinction between a lease and an agreement to grant lease has been pointed out by their Lordships in the case of Tola Ram v. State of Bombay, AIR 1954 SC 496 in these words:
'An instrument is unusually construed us a lease if it contains words of present demise. It is construed as an executory agreement notwithstanding that it contains words of present demise where certain things have to be done by the lessor before the lease is granted, such as the completion or repair or improvement of the premises, or by the lessee, such as the obtaining of sureties.'
Law on the subject has been succinctly stated thus : 'A contract for, lease is to be distinguished from a lease, because a lease is actually a conveyance of an interest in land, whereas a contract of lease is merely an agreement that such a conveyance shall be entered into at a future date' (Woodfall on Landlord and Tenant 25th Edn. at page 151).
8. If the writing contains words of present demise ('hereby agrees to let' etc), although to hold from a subsequent day, it will amount to a lease, notwithstanding a more formal lease is stipulated for, that being considered only as a further assurance.
9. On a perusal of the, patta dated 23-1-1946 there can be no doubt that it is a case of complete demise in praesenti. This patta was executed for 99 years i. e. from Samvat 2002 to 3000 Vikram and a Bum of Rs. 495/- on account of rent at Rs. 5/- per year was paid in advance by the lessee to the lessor at the time of the registration of the patta on the same day. And Clause 4 of the terms of the patta runs thus:
'Jamin par qabza kashtkar (plaintiff) ka hai. Jo badastur ta miyad patta qayam rahega.'
10. Shri Patankar relies on Gaurishankar v. Ibrahim Ali, AIR 1929 Nagpur 298, Khushi Ram v. Munshi Lal, AIR 1940 Lah 225 and Ram T.al v. Dhirendra Nath, AIR 1943 PC 24. I have gone through the reports of those cases and I am of the opinion that not one of them applies here. The Nagpur case was between a vendor and a vendee. The sale-deed was executed but possession was not given. Likewise facts in the Lahore case were different but if it is read as laying down a broad proposition, with great respect, I do not agree. In the Privy Council case remedy by specific performance was just indicated hut it was not held to be the only remedy. I am of the view that Art, 144 of the Limitation Act applied and I am supported in this view bv Suraj Patish Nandan Lal v. Mt. Atul Bibi, AIR 1938 All 429.
11. For these reasons I do not see any error inthe judgment of the first appellate Court. This appeal is, therefore dismissed with costs.