1. This is a suit brought by the plaintiff for the eviction of the defendant from a certain brick-field said to have been leased to him for the period of one year from Kartik 1312 to Aswin 1313 alleging that notice to quit had been served in due course although no notice under law was necessary and also asking for certain arrears of rent for a part of the period in respect of which the tenancy was admitted.
2. The first Court gave a decree to the plaintiff for possession as well as for the last quartely instalment of Rs. 40 as arrears of rent with interest. The learned Subordinate Judge upon appeal by the defendant, however, has set aside that decree and dismissed the whole of the plaintiff's suit.
3. It is contended before me that the learned Judge has erred in law in deciding the case in that way. It is contended that Section 3 of the Registration Act provides that a lease includes an agreement to lease. Section 4 of the Transfer of Property Act makes Section 107 of the same Act a supplemental provision to the Indian Registration Act of 1877, and as Section 107 of the Transfer of Property Act provides that leases for more than one year or from year to year must be by registered deeds and as Section 91 of the Evidence Act excludes evidence in proof of a contract required to be reduced to the form of a document, the defendant was not entitled to prove that there was in his favour an agreement to grant a lease for 5 years.
4. There is no doubt that under Section 4 of the Transfer of Property Act, certain sections of the Act including Section 107 are to be read as supplemental to the Indian Registration Act of 1877, and if Section 107 and the other sections referred to were incorporated into the Registration Act as portions of the same without anything further there would have been considerable force in his argument. That, however, is not the case. There being a special definition of the word 'lease' in the Transfer of Property Act, Chapter V, the word lease in Section 107 must be read as speaking of leases as defined in Section 105. That may be one answer to the appellants' argument. But it is not necessary to rely upon that view of the case, because here there has been not only an agreement to lease, but something more than that. There has been virtually what may be called a part performance of the contract entered into between the plaintiff and the defendant. That contract was found by the lower appellate Court to be that the defendant was to remain upon the land for 5 years on payment of a rent of Rs. 160 in four instalments. The defendant has entered upon the land upon that contract, laid out money and commenced his work. Therefore, it is contended on behalf of the defendant that it would be inequitable to allow the plaintiff to resile from his contract and to turn the defendant out before the expiry of the term for which he had been taken in. It is contended, on the other hand, on behalf of the appellant that if the defendant is allowed to remain on the land for the whole period of 5 years, upon the terms of the oral contract proved in the case, that would be making the provisions of Section 107 of the Transfer of Property Act, which was enacted for the purpose of making virtually all leases of the nature therein referred to, capable of being given effect to only by registered documents, nugatory. Section 107, however, speaks of leases of immovable property from year to year or for any period exceeding one year. Here there is no lease of immovable property for year to year or for any term exceeding one year. There was an agreement to lease and a part performance of that agreement by allowing the defendant to enter upon the land. The plaintiff by his conduct made the defendant alter his position. If the plaintiff had not made an agreement for giving the lease for 5 years it may be that the defendant would not have agreed to enter upon the hind and spend his money upon it. So that the giving effect to the equitable plea of the defendant would only have the effect of estopping the plaintiff from pleading contrary to his own contract. At the same time it would not, I think, make Section 107 nugatory, because the title on estoppel can prevail only against the plaintiff and any person claiming through him. As against a third party it would give no protection to the defendant. In any view of the case, therefore, it docs not appear that the lower appellate Court has made an error of law in giving effect to the agreement found to have been entered into between the parties. This view or the case is supported by the case of Bibi Jawahir Kumari v. Chatterput Singh 2 C.L.J. 343, Lala Surabh Narain Lal v. Catherine Sophia 1 C.W.N. 248 and Sita Nath Pal v. Kartick Gharmi 8 C.W.N. 434. The principle of equity upon which these cases have been decided will be found dealt with at length by Sir George Jessel, M.R. in Walsh v. Lonsdale 21 Ch. D. 9, 52 L.J. Ch. 2 and by Lord Selbourne in Maddison v. Alderson 8 App. Cas. 467 : 52 L.J.Q.B. 737 : 49 L.T. 303 : 31 W.R. 820 : 47 J.P. 821. If the findings of fact arrived at by the lower Court that there was a contract to give a lease for five years be incapable of setting aside as I think it is in second appeal it must be taken as proved that there was such a contract and I do not think that the plaintiff can complain of any hardship if he is held to his contract. It has also been argued on behalf of the appellant that the defendant was, however, debarred from adducing any evidence in proof of a contract for a lease for 5 years by reason of the provisions of Section 91 of the Evidence Act. As I read Section 91 of the Evidence Act it pre-supposes the existence of a document in writing: the words 'except the document itself' seem clearly to refer to such existence and the provision means that no other proof than the writing can be substituted so long as the writing exists. I have already held that in this case there was no document consummating the contract of lease, but there was only an agreement to give a lease and not only that there was a part performance which would bring in the principle of equitable estoppel dealt with above.
5. There is another point in this appeal that the whole suit of the plaintiff has been dismissed notwithstanding that there was an admitted arrear of the rent of Rs. 40 at the end of the year. To that extent the decree of the lower appellate Court will be altered and a decree will be given to the plaintiff for the sum of Rs. 40 which fell due at the end of the first year of the tenancy, that is, at the end of Aswin 1313 with interest at the rate of 6 per cent. per annum until realization. Each party to bear his own costs in the appeal.