1. This appeal arises out of a suit in ejectment. The mother of the present plaintiff had a house in Gouripur Bazar in the District of Goalpara and in 1901 the defendants became her tenant at the rental of Rs. 90 a year and had a shop in the premises. In 1910 the house having been found to be dilapidated the parties met and it was arranged that the lease should continue at Rs. 150 a year after repairs but as the lady had no money the defendants would advance the money for putting the house in order without interest and that the money would be recovered by a deduction of Rs. 75 a year from the present rent of Rs. 150 a year. There was a further term that until the money due on the repairs was re-paid the defendants would not be ejected. Shortly after this t(SIC) mother of the plaintiff who was an old lady of 90 years of age died and has been succeeded by her daughter the present plaintiff. In 1920 the present suit was brought to eject the defendants from the house. The defendants set up a document (fix. C.) under which they stated they were not liable to be ejected until the whole debt had been paid off by payment of Rs. 75 a year. The Munsif, however, found that this deed not having been registered, the defendants were not protected as they were only tenants at will and that as notice had been served, the tenancy had been terminated by that notice and so he gave a decree to the plaintiff to eject the defendants, in payment of the balance due to the extent of Rs. 875 and allowed them a certain time within which to remove the additional houses. Against this order the defendant's appealed. On the appeal coming up before the Subordinate Judge the learned Pleader appearing for the appellant conceded that the position of his clients was that of the tenants-at-will and that they were liable to be ejected but in the circumstances of the case the amount of compensation granted by the Court below was inadequate. The learned Subordinate Judge, therefore, only dealt with the question of compensation and came to the conclusion that Rs. 875 allowed to the defendants was the proper amount.
2. In appeal before us it is first urged that this admission by the Pleader for the defendants did not bar the point as to the validity or otherwise of the lease or whether the defendants are liable to be ejected at all being taken in second appeal. There is no doubt that this is so. I only refer to the case of Secretary of State for India v. Sibaprosad Jana 45 Ind. Cas. 983 : 27 C.L.J. 447, where it was stated following the decision of the Judicial Committee in the cases of Jotendromohun Tagore v. Ganendromohun Tagore 18 W.R. 359 : 9 B.L.R. 377; I.A. Sup. Vol. 47 : 2 Suth. P.C.J. 692 : 3 Sar. P.C.J. 82 (P.C.), and Beni Pershad Koeri v. Dudhnath Roy 27 C. 156 : 26 I. As 216 : 4 C.W.N. 274 : 7 Sar. P.C.J. 580 : 14 Ind. Dec. (N.S.) 103 (P.C.) that an erroneous admission by a Counsel on a point of law is of no effect and does not preclude a party from claiming his legal rights in the Appellate Court. The question of the amount of compensation is not argued before us in second appeal. The only question taken before us is that the document (Ex. C.) though not registered gave them a right under which they could not be ejected and anyhow it did not create a present demise and was only an agreement and not a ease: and that anyhow the principle laid down in the case of Walsh v. Lonsdale (1882) 21 Ch. D. 9 : 52 L.J. Ch. 2 : 46 L.T. 858 : 31 W.R. 109, as to part performance will apply to this case. The question, however, in this case is whether, as a matter of fact, it was in consequence of this document as a lease that the defendants came into possession of this property. An examination of the document in my mind leaves no doubt in this respect. The document, began by describing the deed to be an agreement for letting out basa bari and a tin 'ghar' and it says as follows at the beginning 'you having come to me and Rs. 150 only having been fixed as the annual jama of the said basa bari and the tin ghar, I let out the same to you for carrying on your trade and commerce therein'. Then follows a clause in the document as to the way in which the expenses for repairs would be met. It then says down that after the accounts have been made and the amount of money expended therefor totalled, there would be a fresh deed. It also says that on re-payment of the debt the plaintiff will be able to make any new settlement of the land according to her wish. In the third paragraph there are certain other conditions such as to the maintenance of boundaries, payment of damages for injuries to the ghar not caused by accident, keeping the house in repair (if the lessor does not make the repair the lessee will make it and deduce the expenses thereof from the rent reserved). This clearly shows that this document purports to be a lease: and if it was lease for a limited number of years and as the Pleader for the appellant argues for 20 years, it required to be properly stamped and registered. This has not been done. In my opinion, therefore, the Munsif s decision, which was affirmed by the Subordinate Judge, that the defendants were no more than tenants-at-will is correct. I would, therefore, dismiss the appeal with cost. In doing so, however, I will order that the defendants be given three months' time from the date of the decree of this Court within which to remove the additional house and give up the property on receipt of compensation. The rent due to the plaintiff up to the date of giving up of possession will be set off against the compensation.
3. I agree.