R.C. Mitter, J.
1. This appeal is on behalf of defendants 1 and 2 and arises out of a suit for recovery of arrears of rent for the year 1336 B.S. and the Ashar kist of 1337. The plaintiffs came to Court with the case that the defendants were Ijaradars under them for five years commencing from 1335 B.S. and that the rent payable by them is Rs. 475 a year. The case of the defendants is that they are raiyats and the rent is not Rs. 475 but Rs. 234-13-0 a year. An issue was framed as to the status of the defendantSection The lower appellate Court has come to a finding that the defendants are Ijaradars as alleged by the plaintiffs and that their right to remain on the property demised had ceased in the year 1339. Having regard to the fact that it is a suit for recovery of arrears of rent, I am of opinion that it is not necessary to go into the question of status and that question ought to have been left open by the lower appellate Court. Both Mr. Roy Choudhury and Mr. Gupta agree that the said question ought to have been left open. I accordingly expunge that portion of the judgment of the lower appellate Court which deals with the defendants' status and leave the question open to be litigated if and when occasion arises.
2. The other question involved in this appeal is as to the rate of rent. The lower appellate Court has come to the conclusion that the rent is Rs. 475 and on that finding he affirmed the decree of the first Court. Mr Gupta appearing for the appellants urges that this finding is based on inadmissible evidence and ought to be set aside and the case remanded to the lower appellate Court in order that the said Court may come to a finding as to what is the amount of rent, after excluding such evidence as is inadmissible. For the purpose of arriving at his finding, the learned Subordinate Judge has found the Dakhilas produced by the defendants to be not genuine. That finding is based on evidence and must stand. But the lower appellate Court in coming to its finding as to the rate of rent relied principally upon Ex. 7 which is said to be an Amalnama, and the recitals in three Pottas Exs. 1, 2 and 8, the recitals being that the defendants are Ijardars holding at the rent of Rs. 475 and that the term of their Ijara at the date of the pottas had not expired but was to run on for another four yeaRs. The question therefore raised in this appeal is whether Ex. 7 and the recitals in the three pottas are admissible in evidence against the defendants.
3. I shall first deal with the recitals contained in the pottaSection In my judgment those recitals are not admissible in evidence. These pottas were executed in the year 1336 B.S. They are executed in favour of the plaintiffs by some of their co-shareRs. I do not see under what provisions of the Indian Evidence Act those recitals could be in evidence against the defendants who had secured their interest from the plaintiffs and their co-sharers before the execution of these pottaSection If the defendants' interest had been created after the execution of the pottas any recital therein would have been evidence against them, because they being undoubtedly evidence as against the plaintiffs would have been admissible in evidence against the defendants as their assignSection But having regard to the fact that the defendants had already acquired a right from the plaintiffs before the pottas were executed the recitals are like those in a third party document and are not admissible in evidence against them.
4. As regards Ex. 7, though it is no doubt described as an Amalnama in one part of the document and an ekrar in another part of it, it cannot be by any stretch of language an Amalnama or warrant for possession given by the landlords to the tenants because this document was not executed by or on behalf of the plaintiffs landlords but by the tenant defendantSection I have gone through the terms of the document. The document is really a combination of a kabuliat and a bond promising payment of a portion of the selami which was paid then and there. By this document the defendants took Bandabust or lease of the property for five yeaRs. The rent and all the terms of the settlement are given in detail. The land is described as kharban, that is to say, land covered by straw in its natural state. I am prepared to accept the contention of Mr. Roy Choudhury that it is a kabuliyat in respect of agricultural land and the provisions of Section 107, T. P. Act, have no application whatsoever, that is to say for the purpose of creating a lease of such land, it is not necessary that the lease must be created by a registered document only. Settlement might as well have been made by means of oral agreement. But when an instrument has been executed the question is whether it is affected by the provisions of the Registration Act. In my judgment, if it is a lease of immoveable property, it is affected by the provisions of Section 17, Sub-section (1), Clause (d), Registration Act, and it requires registration, and not being registered it is not admissible by reason of Section 49, Registration Act, and on that ground it ought not to have been admitted in evidence. In the previous paragraph I have assumed that Ex. 7 is a kabuliyat evidencing the terms of a lease of immoveable property. But Mr. Roy Choudhury has argued before me that by this document no interest in immoveable property has been created, and it is merely a contract for sale of straw growing on the land and therefore it is a contract for the sale of goods and so required no registration. I am unable to give effect to this contention. The principle in such cases has been formulated in the case of Duppa v. Mayo Wms. Saunders notes 394 (395) cited by Lord Coleridge, Chief Justice, in Marshall v. Green (1876) 1 C P D 35 at p. 39 and is in these words:
The principle of these decisions appears to be this: that wherever at the time of the contract it is contemplated that the purchaser should derive a benefit from the further growth of the thing sold, from further vegetation, and from the nutriment to be afforded by the land, the contract is to be considered as for an interest in land but where the process of vegetation is over, or the parties agree that the thing sold shall be immediately withdrawn from the land, the land is to be considered as a mere warehouse of the thing sold, and the contract is for goodSection This doctrine has been materially qualified by later decisions, and it appears to be now settled, that with respect to implements or fructus industriales, etc., corn and other growth of the oarth which are produced not spontaneously but by labour and industry, a contract for the sale of them while growing, whether they are in a state of maturity or whether they have still to derive nutriment from the land in order to bring them to that state, is not a contract for the sale of any interest in land but merely for the sale of goods.
5. It is the admitted case of both sides that the straw which was on the land was not fructus industriales; it grew on the land in a wild state. On the terms of the Amalnama it is quite clear that the defendants were to derive benefit from further vegetation and from the nutriment to be afforded by the land. I accordingly hold that the Amalnama created an interest in land in favour of the defendants and was not merely a contract for the sale of goodSection In this view of the matter I do hold that Ex. 7 is not admissible in evidence because it is not a registered document. The judgment of the learned Subordinate Judge makes it quite clear that in arriving at his finding that the rate was Rs. 475 a year, he has relied greatly if not entirely upon the aforesaid four documentSection Inasmuch as I have held that these four documents are not admissible in evidence, the decree of the learned Subordinate Judge must be set aside and the case remanded in order that the question as to the rate of rent payable by the defendant may be decided on the other evidence on the record. It must however be made clear that the finding of the learned Subordinate Judge on the genuineness of the Dakhilas produced by the defendants standSection The appeal is accordingly allowed and the case is remanded to the lower appellate Court to be disposed of in accordance with law. The costs of this appeal will abide the result.