A qabuliat executed by the lessee alone is not a lease within the meaning of the Transfer of Property Act but a licence. An agreement to allow another person to occupy a house and pay compensation for use and occupation is not prohibited by law and is perfectly permissible. A suit for compensation upon a contract embodied in the qabuliat is governed by Article 116 of the Limitation Act. A suit is not barred by Order 2 Rule 2 Civil P. C. if the causes of action in the two suits are different.

( 1 ) THIS is a defendants appeal arising out of a suit for recovery of arrears of rent.

( 2 ) ON 27-9-1932, the defendant usufructuarily mortgaged a house to the plaintiffs respondents. On the same date the defendant executed a qabuliat whereby he promised to pay a sum of Rs. is per month as rent of the house to the mortgagees for a period of 5 years. No lease, as provided under Section 107, T P. Act, signed both by the lessor and the lessee, was executed. The qabuliat was, however, registered- Five years elapsed on 27-9-1937. The defendant did nob vacate the premises nor entered into a fresh agreement. The plaintiffs-respondents then served a notice upon the defendant-appellant to vacate the house. As the defendant did not vacate the house a suit for the ejectment of the defendant was filed on 29 1-1938. In this suit no claim for arrears of rent was included. Then while the ejectment suit was pending, on 19-4-1941 the suit which has given rise to the present appeal, was filed for recovery of rent for the period 27-8. 35 to 26-12-38.

( 3 ) THE defence to the suit was that it was barred by Order. 2 Rule 2 Civil P C. , and that the suit for rent for the period prior to 19-4-1938 was bar. red by limitation on the ground that the period of limitation was 3 years. The trial Court held that the suit for rent for the period 27-3-1935 to 28-1 1938 was barred by Order. 2, Rule 2, and the suit for period 28-1-1938 to 19-4-1938 was barred by Article 110, Limitation Act, as being beyond 3 years of the date of the suit. It, therefore, decreed the suit for the period 28-4-38 up to 26-12-38. The defendant submitted to the decree but the plaintiffs appealed.

( 4 ) THE lower appellate Court held that up to the date of the expiry of 5 years mentioned in the qabuliat, that is up to 26-9-37 the suit was for rent and was, therefore governed by Article 116 and was not barred. Bat it held that the suit for the period after the expiry of the qabuliat, that is, the period 28. 9-37 upto 19 4-38 was barred by Article 110, as it was not a suit for rent arising under the registered qabuliat, hat was a suit for compensation for use and occupation, and that the suit for arrears of rent for a portion of this period, namely. 28-9-37 to 28-1-38, (the last date being the date of suit for ejectment) was also barred by Order 2 Rule 2 as in its, opinion, the suit for rent for this period should have been included in the suit for ejectment. In the result, the learned Judge of the lower appellate Court decreed the suit for the period 27-3-85 to 27-9 37. Against this decree the defendant has come up in appeal to this Gourd.

( 5 ) IN appeal several points have been urged before us. In the first place, it is urged that there being no lease and there being merely a qabuliat executed by the lessee, no relationship of landlord and tenant came into existence and that the qabuliat was a void document. The argument is that in a ease of this kind when the lessor is him self in possession, he cannot take a lease of the property by merely an oral agreement coupled with delivery of possession because there can be no delivery of possession and that the lease can be effected only by a registered instrument executed by the lessor and the lessee. There being no such document executed, there was no lease and if there was no lease the qabuliat is void under Section 23 Contract Act. In oar opinion, this argument is not sound.

( 6 ) NO doubt, a lease of an immoveable property from year to year or for any term exceed, ing one year or reserving a yearly rent, can be made only by a registered instrument. All other leases of immoveable property may be made either (a) by a registered instrument or (b) by an oral agreement accompanied by delivery of posseesion. A lease under the Transfer of Property Act must be executed both by the lessor and the lessee. There is a proviso to Section 107, T. P. Act under which the Provincial Government may direct by a notification that leases of