1. The facts of this case may be shoritly stated.
2. The owner of Taluk Kalim Eaja granted a patni of certain lands in the taluk to Sachu Earn who went into possession. In 905 Ichamoyi, the mother, and Mandakini, the daughter, of the talukdar brought a suit against Sachu Ram, alleging in effect that the grant nominally made to him was for their benefit and praying for an account pf the profits of the patni. The suit ended in a compromise, dated 16th December 1905, under which Sachu Earn admitted that the patni right was in the plaintiffs and agreed to hold possession of the lands as their tenant at an annual rent of Rs. 42-8-0. Provision was also made for the payment of arrears of rent at that rate. A copy of the petition of compromise is on the present record, but no copy of the decree in the suit of 1905 has been filed, the record of that suit having, it is said, been destroyed by fire The Courts below have referred, however, to an entry in the general Register of suits showing that the suit was decreed in accordance with the petition of compromise and are of opinion that the petition was incorporated in the decree. Regard being had to the usual practice in such cases, I see no reason to dissent from that opinion.
3. The plaintiff in the present suit has purchased Mandakini's share in the patni and claims arrears of rent at the compromise rate for the years 1322-1324 and part of 1325 (roughly 1915-1918). The representatives of Ichamoyi are impleaded as defendants. The claim was resisted by the principal defendant (Sachu Ram's son and successor) on several grounds, the main defence being that the relationship of landlord and tenant between the parties had not been established. The Courts below have rejected the defence set up and given the plaintiff a decree for his share of the rent at the rate claimed. The appellant before us is the principal defendant or the defendant, as I shall now call him.
4. The only other fact requiring mention is that the lower Courts have found that rent was paid by the defendant or his father at the compromise rate up to the year 1318 (1911).
5. The argument turned on the legal effect of the unregistered petition of compromise and the decree based thereon. For the plaintiff it is not disputed that the petition embodies an agreement operating as a demise and is, therefore, a lease within the meaning of the Registration Law. Being a lease reserving a yearly rent, it should have been registered under Section 17 Clause (d) of the Registration Act of 1877 under Section 49 'no document required by Section 17, to be registered shall,' if not registered, affect any immoveable property com. prised therein 'or be received as evidence of any transaction affecting such property.
6. The defendant has throughout maintained that the agreement on which the plaintiff founds being inadmissible there is no evidence on which the Courts below could hold that he was a tenant under the plaintiff holding on the terms of that agreement.
7. For the plaintiff it was argued, firstly, that an agreement incorporated in a decree does not require registration, and, secondly, that the Courts below were right in holding, on the authority of their Lordships decision in Mahomed Muza v. Aghor Kumar Ganguli 28 Ind. Cas. 930 : 42 I.A. 1 : 42 C. 801 : 19 C. W.N. 250 : 17 Bom. L.R. 420 : 21 C.L.J. 281 : 28 M.L.J. 548 : 18 A.L.J. 229 : 17 M.L.T. 143 : 2 L.W. 258 : (1915) M.W.N. 621 (P.C.), that the plaintiff was entitled in equity to the rent which he claims on the footing that the agreement, if not formally implemented, had been carried out and acted upon.
8. In reference to the first contention, Pranal Annee v. Lakshmi Annee 26 I.A. 101 : 3 C.W.N. 485 : 22 M. 508 : 1 B)m. L.R. 394 : 9 M.L.J. 147 : 7 Sur. P.C.J. 516 : 8 Ind. Dec. N.S. 363 (P.C.), was cited for the plaintiff and Hemanta Kumari Debi v. Midnapore Zemindari Company 53 Ind. Cas. 534 : 46 I.A. 240 : 47 C. 485 : 24 C.W.N. 177 : 37 M.L.J. 525 : 17 A.L.J. 1117 : (1920) M.W.N. 66 : 27 M.L.T. 42 : 11 L.W. 301 : 31 C.L.J. 298 : 22 Bom. L.R. 488 (P.C.) for the Defendant.
9. In my opinion, the question is concluded by the reasoninig of their Lordships in Hemanta Kumari's case 53 Ind. Cas. 534 : 46 I.A. 240 : 47 C. 485 : 24 C.W.N. 177 : 37 M.L.J. 525 : 17 A.L.J. 1117 : (1920) M.W.N. 66 : 27 M.L.T. 42 : 11 L.W. 301 : 31 C.L.J. 298 : 22 Bom. L.R. 488 (P.C.). In Pranal Annee's case 26 I.A. 101 : 3 C.W.N. 485 : 22 M. 508 : 1 B)m. L.R. 394 : 9 M.L.J. 147 : 7 Sur. P.C.J. 516 : 8 Ind. Dec. N.S. 363 (P.C.) their Lordships were not dealing with the case of a decree incorporating an agreement by way of lease which, under Clause (d) of Section 17, and Section 49 of the Act of 1877, and the present Act would not be admissible in evidence unless registered. Under the terms of Section 17, as it stands in both those Acts, such an agreement is not within the exception now contained in Sub-section (2), Clause (vi), which says that nothing in Clauses (b) and (c) of Section 17 [omitting therefore Clauses (a) and (d) applies to any decree or order of a Court.
10. The compromise agreement in the present case operated as a demise and should have been registered. Not having been registered it is prima facie inadmissible in evidence as a, lease.
11. The decision of the Courts below in the plaintiff's favour purports, as 1 have said, to be based on the equitable doctrine to which their Lordships adverted in Muhomed Mum v. Aghore Kumar Ganguli 28 Ind. Cas. 930 : 42 I.A. 1 : 42 C. 801 : 19 C. W.N. 250 : 17 L.R. 420 : 21 C.L.J. 281 : 28 M.L.J. 548 : 18 A.L.J. 229 : 17 M.L.T. 143 : 2 L.W. 258 : (1915) M.W.N. 621 (P.C.), and Malraju Lakshmi Venkayyama v. Venkata Narasimha Appa Rao 34 Ind. Cas. 921 : 43 I.A. 138 : 39 M. 509 : 20 C.W.N. 1054 : 14 A.L.J. 797 : 31 M.L.J. 58 : (1916) L.R. 651 : 24 C.L.J. 279 (P.C.). In this appeal reliance was placed on the defendant's behalf on the recent decision of Rankin, J., in Sanjib Chandra Sanyal v. Santosh Kumar Lahiri 69 Ind. Cas. 877 : 26 C.W.N. 329 : 49 C. 507 : (1922) A.I.R.C. 436.
12. If the present case, however, admits of a decision in the plaintiff's favour even on the assumption that the agreement in the suit of 1905 is not admissible either as a lease or as evidence of an oral agreement to the same effect, it is unnecessary to discuss the debated questions or to express any opinion in regard to them.
13. Here, if the agreement in question is inadmissible as a lease, it is still, in my opinion admissible in evidence so far as it contains an express admission by the defendant in the suit of 1905 of the title of the plaintiff in that suit as patnidars. In respect of such admission, the agreement, if it comes at all within Section 17 of the Registration Act, would fall within Clause (6) or Clause (c) and the exception in Sub-section (2)(vi) would apply to it. The Courts below have found that rent at the rate now claimed was paid for a number of years to the plaintiffs in the suit by the present defendant or his father. It is true that there was no change of possession. The defendant was in possession before the suit and he continued in possession after the suit, but he attorned to the plaintiffs, one of whom is the predecessor of the present plaintiff.
14. These being the facts, the case of Ameer Ali v. Yakub Ali Khan 25 Ind. Cas. 509 : 41 C. 347 : 19 C.L.J. 498, which was not referred to in the argument but to which my attention has since been called, would seem to be authority for saying that the relationship of landlord and tenant between the parties is established and that the rent due is that which the defendant has been paying.
15. I may add that I do not know whether the defendant appreciates his position. In view of the admission made in the agreement in the suit of 1905, if he is not a tenant, he would appear to be a mere trespasser liable as such to be ejected.
16. Without endorsing all the reasons given in the judgments of the Courts below, I am not satisfied that the conclusion which those Courts have reached is erroneous and, in my opinion, therefore, the appeal should be dismissed with costs.
17. The cross-objection of the plaintiff is not pressed and is, therefore, dismissed without costs.
18. I agree.