JUDGMENT

N.R. Chatterjea, J. - This appeal arises out of a suit for recovery of ijara rent, based upon an ijara kabuliyat executed by the defendant in favour of the predecessor in intei'est of the plaintiffs, whereby the defendant undertook to collect rent of 48 and odd has of lands for three years and agreed to pay to the lessor Rs. 400 a year.

2. The defence was that the contract was not completed, as no pottah was granted by the lessor, that the lessor never allowed the defendant to take possession of the lands, that one hal of land (nine plots) which really belonged to the defendant had been fraudulently included in the kabuliyat which was executed with out full knowledge of its contents, and that as the kabuliyat was not corrected the defendant surrendered; the lease, that the kdbuliyat was never acted upon and that the defendant was not, therefore, liable to pay anything.

3. The Court of first instance, finding all the above pleas in favour of the defendant, dismissed the suit. On appeal, the lower Appellate Court held, that the registration of the kabuliyat was a sufficient compliance with the provisions of Section 107 of the Transfer of Property Act, that the absence of a pottah does not invalidate the contract, that the kabuliyat was duly executed and there was no fraud or misrepresentation practised on the defendant to secure its execution.

4. As regards the nine plots of land, the lower Appellate Court held that there was some difficulty in ascertaining the actual facts, as there had been no local investigation, but that he agreed with the Subordinate Judge, who had gone into the question incidentally, in holding that the nine plots were in possession of the defendant and his co-sharers from long before the date of the kibuliyat as maliks. The lower Appellate Court, however, held, that an agreement to pay rent for land already in the lessee's possession as owner is void, and that the mistake in including the nine plots of land was regarding a matter of fact essential to the agreement, and, therefore, the agreement was altogether void and plaintiff Was not entitled to recover rent.

5. The plaintiffs have appealed to this Court, and it has been contended on their behalf that the lower Appellate Court having held that the kabuliyat constituted the contract of lease and was duly executed, and the case of fraudulent misrepresentation having been found against the defendant, the lower Appellate Court ought to have decided the question whether as a matter of fact the nine plots really belonged to the defendant, and even if they belonged to the defendant, the plaintiffs ought to have been given a decree for proportionate rent for the remaining lands.

6. On behalf of the defendant respondent it has been contended that in the absence of a pottah, the kabuliyat could not constitute a lease within the meaning of Section 107 of the Transfer of Property Act. It has been further contended that even if the kabuliyat operated as a lease and if the case should be remanded at all, there was a number of questions raised in the case which were decided by the Court of first instance but were not decided by the lower Appellate Court, and that the latter should be directed to decide the said questions.

7. So the first question for consideration is, whether a registered kabuliyat executed by the lessee and accepted by the lessor operates as a lease within the meaning of Section 107 of the Transfer of Property Act.

8. There can be no question in this case that the kabuliyat was accepted by the lessor, as the suit has been based upon it.

9. Section 105 of the Transfer of Property Act defines a lease of Immovable property as a transfer of a right to enjoy such property made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions, to the transferor by the transferee who accepts the trans