JUDGMENT

KASLIWAL, J.:— This appeal by special leave has been filed by the defendant in a suit for possession against judgment of Division Bench of the Bombay High Court dated 16th July, 1976.

2. A non-agricultural plot of land admeasuring 1200 sq. yards situated in village Malad belonged to D. B. Conceicao (since deceased). Plaintiffs Nos. 1 to 4 being the brothers and plaintiff No. 5 widow of D. B. Conceicao filed a suit on 28th March, 1959 in the City Civil Court, Bombay for possession of the suit land against the present appellant. D. B. Conceicao had died on March 3, 1959 before filing of the above suit. The suit was brought on the ground that the defendant No. 1 (appellant) had entered into possession of the suit land under a writing of October 3, 1953. In the said letter it was stated that the suit land admeasuring about 1200 sq. yards had been given on a ten years lease. The defendant had to pay annually Rs. 240/-. It was alleged that the said lease was required to be registered compulsorily and in the absence of such registration the lease was void and the defendants were trespassers. It was also alleged in the plaint that the defendant No. 1 did not pay any amount except a paltry sum of Rs. 50/ - paid at the time when defendant No. 1 was put in possession of the land. Defendants Nos.,2 to 8 were tenants kept by defendant No. 1.

3. The appellant admitted that there was an agreement of lease between him and the deceased and that he was also put in possesston of the suit land by the deceased. According to him, there was no necessity of executing a formal or legal document. As regards the payment of rent, his allegation was that he had offered to pay rent to the landlords but they refused to accept the same. Rent sent by money orders were also refused. The appellant also pleaded protection under Section 53A of the Transfer of Property Act. The plea was also taken in the written statement that the City Court had nojurisdiction to entertain the suit as it was a suit between the landlord and the tenant and as such governed by the provisions of the Rent Act. However, this contention was expressly given up at the stage of trial.

4. The learned trial Court held that the defendant No. 1 was not entitled to invoke the doctrine of part performance as envisaged under Section 53A of the Transfer of Property Act. The trial Court also recorded a finding that the defendant No. 1 was not a trespasser in view of the fact that the landlord himself had put in possession as a tenant. However, the trial Court having held that the defendant was not entitled to invoke the doctrine of part performance as he failed to perform his part of the contract, decreed the suit for possession. On appeal, learned single Judge of the High Court allowed the appeal and dismissed the plaintiffs suit. Learned single Judge held that the basis of the claim for possession as alleged in the plaint was that the defendants were trespassers, but in view of the fact that the defendants cannot be considered as trespassers in view of the evidence on record, the plaintiffs suit was liable to be dismissed as they failed to make 1552 out the case alleged in the plaint. The plaintiffs aggrieved against the judgment of the learned single Judge filed a Letters Patent Appeal before the Division Bench of the High Court. Learned Judges of the Division Bench of the High Court set aside the judgment and decree of the learned single Judge and restored the judgment and decree passed by the trial Court. According to the learned Judges the agreement to lease was for a period of ten years and the lessee had agreed to pay rent of Rs. 240/ - annually. Admittedly this agreement of lease was not registered. It was held that in view of mandatory provisions of Section 107 of the Transfer of Property Act such lease required registration and such lease being not registered the transaction was void. It was further held that the possession taken by the lessee under such a void lease, is therefore,