Prinsep and Ghose, JJ.
1. Plaintiff, as proprietor of a share, claimed rent, under a verbal agreement, for a hat from defendants, his co-sharer being made a defendant by order of the Court, and the Munsif gave him a decree. On appeal the suit was dismissed by the Subordinate Judge on the ground that a '' hat' being immoveable property, and the lease being for more than one year, no verbal agreement could be proved; hence it could, under Section 107 of the Transfer of Property Act, be effected only by a registered instrument.
2. In second appeal plaintiff contends that a hat is not immoveable property and that consequently Section 107 of the Transfer of Property Act does not apply. But a hat is a benefit arising out of land, and therefore within the definition of immoveable property as given in Section 2, Clause (5) of the General Clauses Act, and consequently the lease of a 'hat' comes within Section 107 of the Transfer of Property Act, and can be effected only by a registered instrument.
3. Plaintiff, appellant, however, contends in the alternative, that, if this view of the law be adopted, he should obtain a decree for use and occupation, as admittedly the defendants are found to be in possession of the hat of which he is the part-proprietor. That would amount to an amendment of his plaint. The question, therefore, arises, whether this is permissible, and specially in the present stage of the proceedings, that is, in second appeal, when the suit has been tried in two Courts as originally brought as a suit for rent upon an alleged contract. The matter for our consideration, in the first instance, is whether this would be an amendment so as to convert a suit of one character into a suit of another and inconsistent character (section 53, Code of Civil Procedure).
4. The leading case on the subject is Lukhee Kanto Dass Chowdhry v. Sumeeruddi Lusher 13 B.L.R. 243 : 21 W.R. 208, which was decided by a Full Bench of this Court, in which it was held that in a suit for rent the plaintiff landlord was not entitled to have a further trial of the question, whether any, and, if so, what amount of rent is due on account of use and occupation of the land by the defendant. The amount due in the case before us, whether for use and occupation, or for rent, is not admitted. The defendant admits being in receipt of the collections from this hat, but he denies that he was under any lease, and he says that he acted merely as tehsildar for the proprietors. He also denies that any money is due from him on that account. The suit, therefore, if tried as one for use and occupation, would raise issues of an entirely different character from those on which the trial as a suit for rent has been held, and would necessitate a new trial of the case by the lower Court upon fresh evidence. See, in this connection, Eshan Chunder Singh v. Shama Churn Bhutto (11 Moo. I.A. 7 (20) and Narainee Dossee v. Nurrohurry Mohonto Marshall 70.
5. We, therefore, feel bound to refuse to allow such amendment of the claim. it is, we think, at all times undesirable to allow such amendment in second appeal, when the plaintiff has in two Courts never contemplated it, and has even gone so far as to persistently maintain his case as originally brought.
6. The appeal is, therefore, dismissed with costs.