Bhargava, J.—This is a second appeal by the plaintiffs in a suit for recovery of arrears of rent. Plaintiffs who are members of a joint Hindu family, filed the present suit against Lala, Hira and Jawahara sons of Jora and Ghisa son of Moti and grandson of Jora and Mst. Juphi widow of Moti. Jawahara died after the institution oft he suit and the suit is being continued against the remaining defendants.

2. Plaintiffs case is that Jora usufructuarily mortgaged his agricultural lands with their ancestors on 26th November, 1911 and executed a registered mortgage deed in their favour. On the same day, Jora took back the mortgaged land for cultivation on an annual rental of Rs. 199/8/- for a period of three years. A registered lease deed was also executed by Jora on that very day. Plaintiffs case further is that Jora during his life time and after his death his sons continued cultivating the land on the same terms and paid rent to them upto Smt. 1996. But thereafter, they did not pay any rent and so the present suit for recovery of rent for the years 1943, 1944 and 1945 had been filed. It is in evidence that Jora died in the year 1928.

3. The defendants completely repudiated the plaintiffs claim. Execution of the mortgage deed and the lease deed by Jora in favour of the plaintiffs was denied by the defendants. It was stated that the land belonged to the defendants and a part of it was mortgaged by Jora with Samad Khan from whom the defendants got it redeemed on payment of Rs 120/-. .They also denied the payment of any rent to the plaintiffs under the lease deed.

4. The trial court framed as many as ten issues. Issue Nos. 1 and 2 were the material issues and are as under—

Issue No. 1—Did the defendants father usufructuarily mortgaged the land in question with the ancestors of the plaintiffs ?

Issue No. 2—Did defendants father execute the rent note dated 26th November, 1911. Is Qabuliyat invalid in law and did defendants continue to cultivate the land on the same terms and does the relation of landlord and tenant subsist between the parties ?

5. The trial court after recording the evidence of the parties and hearing them found the above two issues against the plaintiffs and held that Exs. P 5 and P 6 i.e., the mortgage deed and the lease deed were never acted upon and the transaction remained only on paper, No clear finding as regards the execution of the document by Jora in favour of the plaintiffs was recorded by the trial court. Nor does it appear from the judgment that any presumption under sec. 90 of the Evidence Act in regard to these deeds was raised by the trial court. The plaintiffs preferred an appeal against that decree but the learned District Judge also came to the same conclusion and rejected the appeal.

6. In this appeal it has been contended on behalf of the appellants that the finding of the court below that the mortgage deed and the lease deed were not acted upon, is erroneous. It is urged that after the expiry of the term of the lease i.e., 3 years, Jora and his sons continued in possession of the land and also paid rent for it to the plaintiffs. The plaintiffs and their ancestors also assented to the continuance of the defendants possession over the land and in such circumstances, the courts below should have found that the defendants were tenants of the plaintiffs and the same relationship subsisted during the period for which rent was claimed in the suit. It is urged that though by virtue of sec. 117 of the Transfer of Property Act, sec. 16 which occurs in Chapter V does not apply to agricultural leases, but as the law laid down in sec. 116 is one of equity, its principles should also apply to agricultural lease which are not governed by the Transfer of Property Act. It is urged that there was positive evidence that Jora and after his death the defendants had been paying rent to the plaintiffs in respect of the land mortgaged with them. It could therefore safely be inferred that the lease was renewed at the same terms as

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