A registered lease, because it does not fulfil the conditions prescribed by Sec.107, T.P. Act, cannot be construed as a lease by oral agreement accompanied by delivery of possession.

Sinha, J.

1. This appeal has been filed by the pltf. They had filed the suit for declarations that the lands described in schedule A to the plaint belonged to them; that they were in possession as maiyaddi lessees; that the defts. had no right, title or interest in the same; & for permanent injunction restraining the defts. from working the lire-clay in the aforesaid lands & from removing the fire-clay therefrom & also for damages against the defts.

2. The pltfs. case is that they had taken a lease for 21 years for extracting fire-clay in seven villages, including village Mandra, the village in suit, from one Shrimati Hirakumari Debi by a registered lease dated 30-1-1934 & that since then they have been in possession by extracting fireclay in village Mandra & other villages. They alleged that since January 1945 the defts., in collusion with one another, have been illegally extracting fire clay from that village without any right or title to do so.

3. The suit was contested by deft. 1 alone, although written statements were filed by the other deft. as well. The contesting deft, pleaded that the pltfs. had no valid lease & that they acquired no right or title to village Mandra by virtue of the said lease. He alleged that the lease in favour of the pltfs. was merely a paper transaction & had never been acted upon & the pltfs. were never in possession of village Mandra. He also alleged that Hirakumari Debi had no right to execute the lease in favour of the pltfs , as she was not the owner of the village. But later on he had to admit that he had himself taken a lease of the fire-clay right of village Mandra from the said Shrimati Hirakumari Debi. His lease is dated 5-10-1943 & his allegation is that even before the execution of the registered lease he was extracting fire-clay from that village under an unregistered Hukumnama dated 5-10-1939.

4. The pltfs. suit was decreed by the trial Court, but, on appeal, the judgment & the decree of the first Court were reversed. Hence this appeal by the pltfs.

5. The Court below has come to the following findings:

(1) that Hirakumari Debi was the owner & proprietress of the village ; (2) that the pltfs. lease is only a patta executed by Hira Kumari Debi alone, & the defts. lease relates to the same right of extracting fire-clay from village Mandra only for a period of 25 years; (3) that the lease in favour of the pltfs. was invalid, because of the provisions contained in Sec.107, T. P. Act; (4) that the pltfs. were not in possession of the village in suit & there is no evidence worth reliance that they had ever extracted fire-day from village Mandra, although the pltfs. were in possession by extracting fire-clay in village Bahira Dih, one of the seven villages mentioned in the patta in their favour; & (5) that the pltfs. were not entitled to invoke in their aid the provisions of Sec. 53A, T.P. Act, because those provisions are available only to a deft. in an action & not to the pltf.

6. The learned counsel appearing on behalf of the appellants has urged three points in support of the appeal: (1) that although the lease in favour of his clients was not executed in the manner prescribed by Sec.107, T. P. Act, the written document, namely, the patta, can be construed to embody an oral agreement accompanied by delivery of possession, &, therefore, such a lease would be valid for one year & thereafter the pltfs. appellants should be held to have been in possession of the leasehold by holding over under Sec.116, T.P. Act; (2) that the pltfs. appellants having been found to be in possession of Bahira Dih, one of the villages included in their lease, they must be deemed to be in constructive possession of the other villages including the village in suit; & (3) that the provisions of Sec. 53A, T.P. Act, are available to the appellants although they are the pltfs. to the action, & they are, therefore, entitled to maintain their possession under that section.

7. The relevant portion of Sec.107, T.