K.L. Pandey, J.

This appeal under the Letters Patent is directed against the reversing decree of the learned single Judge by which the plaintiffs' claim for possession of a house and arrears of rent in respect of that house was dismissed.

The main facts of this case, which are no longer in controversy, may be briefly stated. The house in dispute was owned by the two defendants and their father Lachhmandas. They executed in favour of the plaintiffs a sale deed dated 22nd January 1938. Also, on the same date, the two defendants further executed a chitthi by which they undertook to pay to the plaintiffs Rs.150 as rent of the house for one year and promised to vacate it at the end of that year. It appears that Lachhmandas died subsequently. Since the defendants did not get the sale deed registered, the plaintiffs filed a suit under section 77 of the Registration Act and obtained a decree directing its registration. Even so, they did not present the sale deed for registration within 30 days of the decree and could not thereafter get it registered as decided finally in Munnalal v. Pachorilal 1950 NLJ 266 : ILR 1950 Nag. 805 : AIR 1950 Nag. 105. In the meanwhile, the plaintiff's had filed Civil Suit No. 70 of 1941 for recovery of arrears of house rent. That claim was compromised but the defendants applied to the Debt Relief Court and secured an order for satisfaction by instalments which they have been paying. The plaintiffs filed another like suit - No. 57-B of 1945-and obtained a decree in terms of a compromise between the parties. Then their suit - No. 6-B of 1950 - was however dismissed in default. Subsequently, by a notice dated 19th February 1951, which the defendants received on 21st February 1951, their tenancy was terminated and they were required to vacate the house by 22nd March 1951 but they continued to be in possession of the house.

In substance, the plaintiffs claimed that, having taken the house from them and also having acknowledged them as landlords, the defendants must vacate the house and pay the arrears of house rent.

In answer, the defendants pleaded inter alia that there was no contract of tenancy and that there was only a temporary arrangement for mutual convenience whereby they agreed to pay Rs. 150 annually to the plaintiffs pending acquisition by them of a valid title to the house. Since the plaintiffs failed to acquire title to the house and the defendants are in possession of that house as owners, the plaintiffs' claim for possession and house rent is unsustainable. The defendants further averred that they never acknowledged the plaintiffs as their landlords and denied that they were precluded from challenging the plaintiffs' title to the house.

The Court of first instance accepted the defence and dismissed the suit. While the first appeal Court reversed that decree, the learned single Judge, taking a different view on most of the questions in controversy, restored the decree of the Court of first instance.

At this stage, it will be convenient to set out the conclusions of the learned single Judge which have been assailed before us:

(i) During the pendency of the second appeal, one of the appealing defendants, Pachorilal died on 3rd January 1957. His personal heirs were his legal representatives and unless they were impleaded as parties within the prescribed time, the appeal would partially abate. Since the limitation for impleading the legal representatives in such a case was 3 years under Article 181 of the Limitation Act, they were directed to be so impleaded; Abdul Baki v. R.B. Bansilal Abirchand Firm, Nagpur 1944 NLJ 331 : ILR 1944 Nag. 577 : AIR 1945 Nag 53.

(ii) There was in this case no lease but only an arrangement as pleaded by the defendants.

(iii) The claim is unsustainable when the title does not reside in the plaintiffs.

(iv) The plaintiffs cannot take advantage of the provisions of section 53A of the Transfer of Property Act which is available only as a defence for protecting possession.

(v) I