S. Natarajan, J.
1. The plaintiff, who has failed before the trial Court and the lower appellate Court in his action for recovery of possession of the suit site, is the appellant herein. As may be seen from the cause-title, the plaintiff is a Church, and the suit was instituted against four persons, of whom the first and fourth defendants alone are respondents herein, for recovery of possession of a site measuring 45' x 47' in Survey No. 2306/1 in St. Xavier Street, Madras. On the suit site the first respondent's father had Pvt. up a superstructure and it world appear to bear municipal door number 2/2. The second respondent is alleged to be a sub-lessee under the first respondent, the other two sub-lessees viz., defendants 2 and 3, being reported to have since vacated the premises. On the ground that the suit property was a part of the Church and hence res extra commercium, the appellant terminated the tenancy of the first respondent by notice, dated 16th November, 1965 and this was followed by a suit when possession, was not surrendered.
2. The defence of the first respondent was that the suit site had been taken on lease by her father Varadarajulu Naidu fifty years ago, and, in ejectment proceedings instituted by the appellant, there was a compromise in C.C.C.A. No. 32 of 1951 on the file of this Court, wherein it was specifically agreed that the appellant should enter into a registered lease with the first respondent for leasing the site for a period of twenty-one years at the enhanced rent of Rs. 30 per mensem as against the original rent of Rs. 15 per mensem. The period of twenty-one years not having expired, the first respondent challenged the suit as premature. Secondly, it was contended that the lease would be governed by the City Tenants' Protection Act and therefore, the first respondent was entitled to rights and benefits conferred on her as a tenant by the said Act. The second respondent sailed with the first respondent and contended that he was a sub-lessee to the knowledge of the appellant and the suit for ejectment was not maintainable.
3. The first respondent followed her written statement with an application under Section 9 of the Tamil Nadu City Tenants' Protection Act for the relief of having the suit site valued and sold to her at the rate fixed by the Court.
4. The trial Court rejected the claim of the first respondent that she was entitled, under the City Tenants' Protection Act, to have the suit site sold to her on the ground that the site formed an integral part of the Church and was, therefore, res extra commercium. It, however, sustained the first ground of defence, viz., that in view of the compromise decree passed in C.C.C.A. No. 32 of 1951, the first respondent was entitled to be in possession of the site for a period of twenty-one years from the date of the decree and consequently, the suit was premature. In that view of the matter, it dismissed the appellant's suit. The appeal to the Second Additional City Civil Judge, Madras, by the appellant also ended in failure since the lower appellate Court concurred with the view of the trial Court that the suit was premature. It is in these circumstance, the appellant has come forward with this second appeal.
5. Mr. Abdul Hadi, learned Counsel for the appellant, would urge that the Courts below have committed an error of law in admitting in evidence Exhibit B-5 which is a certified copy of the decree in C.C.C.A. No. 32 of 1951, and holding, on the terms contained in Exhibit 6-5, that the suit was premature. The contention of the learned Counsel was that the compromise decree created leasehold rights in favour of the first respondent and therefore required registration before it could be admitted in evidence. To appreciate the point urged by the learned Counsel, it is necessary to extract the terms found in the compromise decree:
(i) That the appellant herein (plaintiff) shall grant a registered lease in favour of the 1st respondent herein (1st defendant) at the cost of the 1st respondent herein (1st defendant) for a period of 21 years in respect of the suit land described in the schedule to the plaint,
(2) That the 1st respondent herein (1st defendant) shall pay to the appellant herein (plaintiff) a sum of Rs. 30 (Rupees thirty only) per mensem by way of lent for the suit land as from the date of this decree and that the same shall be payable regularly on or before the 5th of each month.
(3) That the 1st respondent herein (1st defendant) shall pay to the appellant herein (plaintiff) the arrears of rent due at the old rate of Rs. 15 (Rupees fifteen only) per mensem upto this date.
(4) That the 1st respondent herein (1st defendant) shall vacate and deliver possession of the suit land to the appellant herein (plaintiff) on the expiry of the said period of twenty-one years and that the 1st respondent herein (1st defendant) shall be entitled to remove his superstructure or, by mutual consent, the superstructure may be valued and that if the 1st respondent (1st defendant) be willing to sell the same the appellant herein (plaintiff) shall be at liberty to purchase the same for a reasonable price, agreed to between the parties.
(5) That the appellant herein (plaintiff) shall not be entitled to increase the rent during the subsistence of the lease ; and
(6) That the 1st respondent herein (1st defendant) shall not be entitled to any benefits of the Madras City Tenant's Protection Act.
From the extract given above, it may be seen that an agreement was entered into between the appellant on the one hand and the 1st respondent's father Varadarajulu Naidu, who was the first defendant in the earlier suit, on the other, whereby the appellant inter alia agreed to Varadarajulu Naidu being the lessee of the suit site for a period of twenty-one years and, in turn, Varadarajulu agreed to pay enhanced rent at the rate of Rs. 30 per mensem from the date of the decree. Undoubtedly, the compromise decree has all the trappings of a demise in presenti to wit, a lease. Mr. T.S. Subramaniam, learned counsel for the respondents, strenuously contended that Exhibit B-5 ought not to be construed as an instrument purporting or operating to create any fresh right in favour of Varadarajulu Naidu. The plea of Mr. Subramaniam was that, since Varadarajulu Naidu was already in possession of the site as a lessee Exhibit B-5 did nothing more than recognise his rights to be in possession thereof for a further period of twenty-one years and only minor variations were made in the terms of the pre-existing lease such an enhancement of rent from Rs. 15 to Rs. 30 per mensem and the mode of discharge of the arrears of lent. This contention is clearly devoid of substance and the gloss sought to be put on the recitals contained in the compromise decree will be doing violation to the letter and spirit of the document. As already stated, the compromise decree contains within itself all the terms and conditions of a lease deed, it is a document entered into between the lessor and the lessee, the period of the lease is mentioned, the rate of rent has been fixed and there is also reference to the liability of the lessee to deliver possession of the leased site at the end of the stipulated period of twenty-one years. Even with regard to the superstructure put up by the lessee, there is provision in the compromise decree as to what was to happen to it at the end of the lease period. Lastly, whatever may be the operative force of the clause, there is also a stipulation in the compromise decree that the lessee will not be entitled to any benefit under the City Tenants Protection Act. These features unmistakably go to establish that Exhibit 6-5 was intended to create a lease of the suit site for a period of twenty-one years from the date of the agreement, and can never be construed as a document bereft of the characteristics of a lease deed.
6. Before proceeding to consider the argument of the appellant's counsel that since the compromise decree was in the mature of a lease deed it required registration, it must be remembered that a compromise decree is, in reality, nothing more than a contract of parties with the command of a Judge superimposed on it. Vide : Habib Main v. M. Ahmad : AIR1969All296 and Venkata Subba Rao v. Jagannadha Rao (1964) 2 M.L.J.112. Once this is realised, it necessarily follows that a compromise decree must also satisfy the requirements of law relating to contracts if the compromise is sought to be enforced or is offered in defence.
7. Turning, new, to the contention of Mr. Abdul Hadi that in the absence of registration Exhibit B-5 is not admissible in evidence, it must be noted that Section 47(2)(vi) of the Indian Registration Act which exempts any decree or order of Court (except a decree or order expressed to be made on a compromise and comprising immoveable property other than that which is the subject-matter of the proceeding) from registration will have application only to documents of demise specified and enumerated in Clauses (a) and (b) of Section 17(i) of the Registration Act. The exemption would not extend to leases of immoveable property from year to Year or for any term exceeding one year or reserving an yearly rent referred to in Section 17(i)(d). This position of law is well-settled and I need make reference only to a few decisions on this aspect. A Full Bench of this Court in Kasim Marakkayar v. Muhammad Abdul : AIR1944Mad273 , decided that though a lease is, no doubt, a non-testamentary instrument which operates to create a right in immoveable property, a compromise which operates as a lease is not exempt from registration under Sub-section (2)(vi) of Section 17, as that sub-section only exempts decrees and orders which fall within Clauses (b) and (c) of Sub-section (1) and has no application to leases which fall under Clause (d). Jagdish Ghandra Deo v Biseswar Lal : AIR1942Pat323 , also laid down that if a compromise decree amounts to a present demise of property, the document is inadmissible without registration. This ratio was affirmed by the Supreme Court in Mangan Lal v. Md. Moinul Huque : 1SCR833 , though the Court held, with reference to the facts of that case, that since the contemplated under lease therein was to take effect only on a contingent event, the compromise decree projected for consideration did not fall within Section 17(1)(d). Mr. T.S. Subramaniam relied on Danlat Ram v. Haveli Shah I.L.R. 1939 Lah. 49, Md. Mohideen Ambalam v. Rajah of Ramnad (1958) 71 L.W. 44 and Nanda Rani v. Apcar Collieries Limited : AIR1963Cal636 to contend that when a decree embodging the terms of a contract did not create or declare a fresh lease, it would not fall within Section 17(i)(d) of the Registration Act and therefore, it would not require registration. The stand of the learned Counsel for the respondents cannot be countenanced, for, the argument proceeds on the erroneous basis that Exhibit B-5 did not, in terms, create a fresh lease and was only intended to secure continuation of an already existing lease. The enhancement of rent from the date of the decree as well as the undertaking by the lessee that he would not claim benefit under the City Tenants Protection Act are tell-tale features and go to show that, whatever rights and relationship the parties had with one another prior to that date, those rights were put an end to and fresh rights and obligations were created as and from the date of the compromise decree.
8. In his bid to establish that Exhibit B-5 did not, by itself, create leasehold rights in favour of Varadarajulu Naidu, Mr. Subramaniam contended that Clause (1) of Exhibit B-5 provided that the appellant had to grant a registered lease deed and, as long as that had not been complied with, Exhibit B-5 must be deemed to be an inchoate instrument of lease. In this context, it must be stated that though Exhibit B-5 provided for a registered lease deed being executed by the appellant, such a deed was not executed, and much less registered. On that score, however, the respondents cannot be heard to say that Exhibit 6-5 was an inchoate instrument and did not create a lease in praesenti from the date of the decree. The execution of a registered lease deed was a mere formality and did not, in any way, retard or postpone the lease envisaged under Exhibit B-5 coming into operation. It is common ground that Varadarajulu Naidu, the lessee under Exhibit B-5, admitted liability and started paying rent at the rate of Rs. 30 per mensem from the date of the compromise. Possession of the leased site was admittedly with him and therefore, the clause relating to the execution of a registered lease deed was only an innocuous provision. A Full Bench of this Court considered in Moparappa v. Ramaswami : AIR1934Mad418 , whether an understanding between parties that a formal lease deed was to be executed later had the effect of taking an oral agreement for lease outside the scope of Section 107 of the Transfer of Property Act. The Full Bench, held that the oral agreement, notwithstanding the understanding to have a formal deed executed later, amounted to a lease. The ratio in this case was followed in Manjit Singh v. J.P. Jarrawala A.I.R. 1971 J. & K. 86 and it was held that a document, where under all the terms relating to lease had been settled, created a demise in praesenti notwithstanding that a formal lease was to be executed later on. In such circumstances, the respondents cannot be heard to say that the lease contemplated under Exhibit B-5 did not come into force as a formal lease deed had not been executed in terms of the compromise.
9. Digressing for a moment, even if Exhibit B-5 were to be continued as an agreement to lease, and not a lease deed by itself, it must, nevertheless, suffer the incidents of stamp-duty and registration. An agreement to lease is also included in the word 'lease' under the Indian Stamp Act. But, in order to make such a document chargeable with stamp-duty as an agreement to lease or lease deed, the document must show the creation of an actual and present demise which should not be contingent on the happening of a certain event or the doing of a certain future act. Judged by these standards, there can be no difficulty in holding that Exhibits B-5, even if it were to be construed as an agreement to lease, did create a present and actual demise. In similar circumstances, Courts have held that an agreement to lease did attract the provisions of the Stamp Act, even though it contained a stipulation that a formal lease deed was to follow. On a Reference under the Indian Stamp Act, 1879, Section : (1894)4MLJ104 , a Full Bench of this Court held that an agreement for lease must be stamped as such notwithstanding that another instrument was intended to be executed. To the same effect is the decision in Manjit Singh v. J.P. Jarrawald A.I.R. 1971 J. & K. 86.
10. The Courts below have unfortunately held that the compromise decree did not confer a leasehold right on Varadarajulu Naidu as the decree provided for the execution of a formal lease deed in terms of the decree. The execution of the lease deed was not a contingency which postponed the coming into operation of the lease agreement between the parties or the lease taking effect. Only if the lease taking effect was beyond the contingent event can it be said that the agreement was inchoate and it did not create a current lease in favour of the lessee. The view taken by the Courts below is not in accordance with law and therefore, the dismissal of the suit as premature cannot be sustained.
11. On behalf of the respondents, a proposition was advanced that, in any event, the respondents are entitled to be in possession of the leased site for the stipulated period in accordance with the doctrine of part performance. According to the respondents, even if the compromise decree required registration and was, therefore, not admissible in evidence, the non-registration of the decree could not affect their right to be in possession of the site for a period of twenty-one years as they had been inducted into possession of the site in part performance of the agreement and they were therefore entitled to resist the appellant's suit as a premature action. In support of this contention, reliance was placed on Muralidhar v. Mt. Tarn Dye. : AIR1953Cal349 and Hadu Maharana v. Ramdulal : AIR1944Pat35 . In both these cases it has been held that even in cases where a lease deed is inadmissible in evidence on account of its non-registration or some such defect, the tenant would, nevertheless, be entitled to have the deed admitted in evidence to prove the nature and character of his possession if he had been put in possession of the leased property in part performance of the agreement of lease. Whatever may be the merit at this contention, the respondents cannot be allowed to raise this plea because they have not laid the foundation for it in the pleadings or in the evidence. It is needless to say that a defence under Section 53-A of the Transfer of Property Act involves questions of fact and consequently, the party wishing to set up such a defence ought to lay the requisite foundation for it in his pleadings as well as in his evidence. As has been pointed out in Serajul Haque v. Dwijendra Mohan : AIR1941Cal33 and Sailajananda Pandey v. Lakhickand Sao : AIR1951Pat502 , a defence under Section 53-A of the Transfer of Property Act cannot be allowed to be raised for the first time in second appeal because it raises questions of fact which should have been put in issue at the trial.
12. Yet another ground on which Mr. Subramaniam attempted to sustain the judgment of the Courts below was that the first respondent was entitled to benefits conferred on tenants under the City Tenants Protection Act and therefore, the appellant was not entitled to recover possession of the site. This contention is clearly untenable for more than one reason. Firstly, the contention proceeds on the basis that the provisions of the City Tenants Protection Act would apply to the facts of the case. As has already been stated, the trial Court rejected the case of the first respondent in this behalf on the ground that the leased site formed part of the Church and was, therefore, res extra commerciitm. It must be remembered that it is not every lease of a vacant site that would entitle a tenant to ask for a sale of the site whereon he had put up a superstructure, under the provisions of the City Tenants Protection Act. Leases of certain classes of site, as pointed out by a Bench of this Court in Sandareswarar Devasthanam v. Marimitthit : AIR1963Mad369 , will fall outside the scope of the City Tenants Protection Act. To that class belongs the site of a temple or church or mosque, its building and appurtenances as they would be res extra commercium. In an attempt to get over the situation Mr. Subramaniam placed reliance on M.H.K. Ashurkhana v. Manlyanna Naicker : (1973)1MLJ74 , wherein V. Ramaswami, J. has held that tenancies of lands owned by wakfs or trusts or endowments are not excluded from the operation of the Tamil Nadu City Tenants Protection Act. This contention overlooks the fact that the 1st respondent's claim for protection under the Act has not been negatived on the general ground that the site belonged to a church, but only on the specific ground that the site formed part of the appellant Church itself. This finding is one of fact and it cannot now be disturbed in the second appeal. It is, no doubt, true that the lower appellate Court has not given its pronouncement as to whether it concurred with the finding of the trial Court in this behalf. But, it is clear from the judgment that the respondents themselves did not canvass the correctness of this finding before the lower appellate Court. In such circumstances, it must be held that the finding has become conclusive and cannot be re-agitated in second appeal.
13. The second fallacy committed by the respondents in invoking the provisions of the City Tenants Protection Act to their aid is that they have not kept open their claim, but, on the other hand, have allowed it to abate. Mr. Subramaniam, however, contended that under Order 41, Rule 22 of the Code of Civil Procedure, a respondent in an appeal is entitled to support the judgment of the Courts below on all grounds including those that were not approved by the trial Court or the lower appellate Court. In support of this contention, reliance was placed on Balinswami Aiyar v. Lakshmana Aiyar : (1921)41MLJ129 , Venkata Rao v. Satyanarayanamwthy : AIR1943Mad698 , Siva Pershad Moria v. Swarajyalakshmi (1959) 2 A.W.R. 452 : (1960) A.L.T. 96, Ashabhai Patel v. Dabhi Fulsinji : 1SCR712 and Virdhachalam Pillai v. Chaldean Bank : 5SCR647 . These authorities can have no application to the facts of the case. It must be remembered that a tenant wishing to exercise and enforce his rights under the City Tenants Protection Act has to file an application under Section 9 of the Act to have the site whereon he had put up a supersaturate, valued by the Court and made available to him for purchase. Such an application was made by the first respondent before the trial Court and when that application was dismissed on account of the Court holding that the leased site formed part of the Church and was therefore not alienable, the first respondent did not challenge the correctness of the finding and prefer a civil miscellaneous appeal to the lower appellate Court. Having failed to do so the first respondent cannot be heard to' contend that she is still entitled to invoke the provisions of the City Tenants Protection Act to her aid in defending the suit for ejectment. This is not a case where the defence projected by the respondents was of a general nature, taut it was of a special nature and for which a specific procedure had been laid down under the Act. Having failed to keep alive the collateral proceedings, the first respondent cannot be heard to say that she can rely upon the provisions under Order 41, Rule 22 of the Code of Civil Procedure and attempt to substantiate the judgment of the Courts below on the disallowed ground as well.
In any event, even if the respondents are entitled to challenge, in this appeal, the correctness of the finding of the trial Court that the leased site was res extra commercium, it must still be held, as pointed out in Natesa Madaliar v. Bavanarayanaswami Koil (1996) 79 L.W. 133, that the finding on this aspect was a question of fact and cannot, therefore, be traversed in second appeal.
14. In the result, it is seen that the judgments of the Courts below cannot be sustained and the appellant-plaintiff is entitled to succeed in his suit for ejectment. The second appeal will, therefore, stand allowed and the appellant's suit for recovery of vacant possession of the plaint schedule land will stand decreed. Both parties will bear their respective costs throughout. No leave. The respondents are given three months' time to vacate the suit site.