1. The defendant in this suit is in possession of certain tanks belonging to the plaintiff. It is found that the defendant came into possession under an agreement in writing which, if it had been registered in accordance with the requirements of Section 107 of the Transfer of Property Act, would have been a valid lease for a term of eight years. Being unregistered, however, the document is, under the provisions of Section 49 of the Registration Act, inadmissible in evidence, at any rate as a lease. In that state of things the plaintiff seeks to evict the defendants on the footing that he is at the highest a tenant at sufferance. The trial Court dismissed the suit but the lower Appellate has made a decree in the plaintiff's favour.
2. On this appeal it has been contended on the defendant's behalf that having been placed in possession, he is in the same position as if the written agreement had been duly registered as a lease. In support of that contention we have been referred to a number of cases such as Bibi Jawahir Kumari v. Chatterput Singh 2 C.L.J. 343, Singheeram v. Bhagbat Chander 6 Ind. Cas. 632 : 11 C.L.J. 543, and Sarat Chandra Ghose v. Shyam Chand Singh Roy 14 Ind. Cas. 701 : 39 C. 663 : C.L.J. 71, where the principle laid down in England in Walsh v. Lonsdale (1882) 21 Ch. D. 9 : 52 L.J. Ch. 2 : 46 L.T. 858 : W.R. 109 has been applied in this country.
3. All we need say in the present case is that this defence to the action was not taken in the Courts below and the plaintiff, therefore, had no opportunity of meeting it. If it be said that the defence raises a question of law and law only, I am not sure that that is so. Moreover, a court of Appeal must have a discretion whether it should allow a new point to be raised or not. If the new point goes to the jurisdiction of the Court below or if a Statute has been contravened, the Court of Appeal may properly consider it: Rajah Balwant Singh v. Secretary of State 30 I.A. 172 : 3 C.W.N. 121(P.C.) : 25 A. 527 : 8 Sar. P.C.J. 564, and Raja Har Narain Singh v. Chaudhrain Bhagwant Kuar 18 I.A. 55 at p. 58 : 13 A. 300(P.C.) : 6 Sar. P.C.J. 14 : 15 Ind. Jur. 283 : 7 Ind. Dec.(N.S.)189. The new point here is not of that description and we do not think we should allow it to be taken.
4. It may be added that the term of the eight years mentioned in the written agreement will expire some months hence. The result is that the appeal is dismissed with costs.
5. The plaintiff has a cross-objection on the subject of mesne profits. It was filed out of time. An application was made for extension of time but no notice was given to the other side of the affidavit on which the application was biped. The cross-objection must, therefore, be disallowed but without costs.