Rowland, J.This is an appeal by the defendant against a decision of the District Judge of Cuttack decreeing the plaintiffs suit for rent of the years 1341 to 1844 at the rate claimed by the plaintiff, that is to say, Rupees 12-12-0 per annum, whereas the defendant contended that the rate of rent stipulated for between the parties was Rs. 4-4-0 which had subsequently been raised by consent to Rs. 5-8-0 and could not be further enhanced. The defendants contention was accepted by the Munsif, but the District Judge gave the plaintiff a full decree as claimed. One contention advanced in second appeal is that the civil Court had no jurisdiction to entertain the suit for rent; it should have been brought before a revenue Court, being a suit under the provisions of the Orissa Tenancy Act. The position of the parties must therefore be stated.

2. The plaintiff is a chandnadar and the defendant an under-tenant holding under him. The local expression for this tenancy is darpattadar. It is not disputed that the land is homestead and is neither a part of, nor held in connexion with an agricultural tenancy of any kind. That being so, I shall follow the decision of Ross J. Radhamohan Jiu v. Kasinath Das 1 Cut. L.T. 28 where he says:

Even if it (the suit land) falls within the area to which the Orissa Tenancy Act applies, it will not be governed by that Act unless it is agricultural land.

And again:

If the land is not agricultural land, then Section 236 would hardly be sufficient to oust the jurisdiction of the civil Court, because it would have to be shown that the homestead was held by a raiyat and also that it was held otherwise than as part of his holding as a raiyat. But if this is not agricultural land, then there is nothing to show that; the defendant is a raiyat at all and it is not suggested that he has any other holding.

3. The next point is whether the decree of the Munsif should be restored. The defendant was inducted on the land under an agreement to lease which was expressed in two registered documents dated 1931--a patta on the one hand and a kabuliat on the other. The patta was executed by the landlord and not by the tenant and the kabuliat by the tenant and not by the landlord. Before these documents were executed an amendment to Section 107, T.P. Act, had come into effect introducing a Sub-clause as follows:

Where a lease of immovable property is made by a registered instrument, such instrument or where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee.

4. In the result it must be held that the two documents even read together do not constitute a validly executed lease of immovable property; but admittedly the defendant was put into possession. That being so, although the lease did not operate to transfer to the defendant the right of enjoyment which ordinarily passes by a lease, Section 105, the defendant would obtain in respect of the property the benefit of Section 53A which bars the transferor from enforcing against him any right in respect of immovable property other than a right expressly provided by the terms of the contract, subject to the proviso that the transferee has performed or is willing to perform his part of the contract. Among the covenants made by the defendant in the contract was, of course, the stipulation for rent and the question arises whether the plaintiff can sue for rent in accordance with the contract or will get damages for use and occupation to be measured by the Court at a reasonable rate.

In Aziz Ahmad v. Alauddin Ahmad AIR 1933 Pat. 485 there is a very careful (c) examination of a position similar to that in the present case. After examining numerous authorities Mohamad Noor J. took the position that a verbal lease for more than one year is valid for one year if accompanied by delivery of possession. Thereafter the provision of Section 116, T.P. Act, is attracted and the defendant continued to be in the position of a tenant from year to year, so that the plaintiff was entitled to rent; but it was pointed out that the new Sub-clause to Section 107 does not say anything about the rights of the parties under the invalid lease and that holding over has been recognised by the statute itself. From this decision a Letters Patent appeal was preferred and the decision was affirmed in Alauddin Ahmad v. Aziz Ahmad AIR 1934 Pat. 369. Courtney-Terrell C.J. pointed out that Section 116, T.P. Act, applied, that on the one hand it was open to the tenant at the end of any yearly tenancy to walk out of the property and ignore the lemainder of the term notwithstanding that the agreement had stipulated for a longer period; but he said:

They cannot be allowed to escape payment for the years during which they were in occupation as tenants; on the ground that the verbal lease is not binding as a lease for the period agreed upon.

5. Those decisions, in my opinion, are sound authority for the view that so long as the tenant remains in the enjoyment of the property, he must fulfil whatever he has undertaken to do as his part of the covenant. In Nand Ram Singh Vs. Hari Saran Das and Others, a similar result followed, but that was a case before the amendment of Section 107 and therefore not strictly in point. Then it is said that the stipulation in the lease did not entitle the plaintiff to the increase of rent demanded, but only to some increase the amount of which it was open to the parties to settle by subsequent oral agreement and that it was so settled. The suit land is in a temporarily settled area and the covenant between the parties was that rent at Rs. 4-4-0 should be paid so long as the rent payable by the lessor to his superior landlord was not enhanced; but that

if in the settlement the rent of the entire land, belonging to me be increased, I and my legal representatives can also increase the rent payable by you on the demised land accordingly (or proportionately) and you and your legal representatives will be liable to pay the same.

6. This is the stipulation in the patta and there is corresponding stipulation in the kabuliat. The parties are at variance as to whether the particular word "tatwanusare" should be translated "proportionately" or "accordingly." The District Judge has interpreted it as meaning proportionately and has said that the contract must be strictly enforced. The construction is a question of law open to me in second appeal, but an identical stipulation in an agreement between the plaintiff and another party came for interpretation before another Judge of this Court in Kartick Chandra Mohapatra v. Ramdulal Ghose Second Appeal No. 111 of 1939. It is stated in that decision that there was an agreement that if by the settlement the liability of the landlord be increased, the tenant promised to pay proportionate enhancement of rent. I shall take it that the tenant had agreed to pay proportionately enhanced rent. On the terms of the contract then he was entitled to get rent at the rate allowed by the District Judge. The last contention I have to consider is whether there was a waiver of the right to get rent at this rate by reason of the guardian of the plaintiff having for two successive years after the settlement proceedings accepted rent from the defendant at Rs. 5-8-0 per annum. The District Judge has regarded this matter as concluded by the provisions of Section 92, Evidence Act, saying that the defendant cannot prove a separate subsequent oral contract in amendment of the terms of the previously registered lease. He says:

The only effect that these payments at Rs. 5-8-0 for the two previous years can have is that they are accepted by the plaintiffs guardian in full acquittance of the demand for those particular years.

7. Now it is said in second appeal that the District Judge fell into an error in saying that it was not open to the defendant to put forward any oral agreement varying the terms of the contract, and I am referred to Beni Madhub Gorani v. Lalmoti Dasi 6 C.W.N. 242 where it was held that evidence is admissible as between a landlord and tenant to show that the kabuliat was never intended to be acted upon or enforced or that there was a waiver of some of its terms. The fact of payment of rent for a number of years was admissible to show that the intention of the parties was that the kabuliat from the very first was not intended to be acted upon or that there had been a waiver by the parties. In another case of the Calcutta High Court in Manindra Chandra Nandi v. Durga Sundari Dasya AIR 1917 Cal. 734 where a similar position arose, it was said that the mere fact that a landlord accepted rent for some time at a lower rate than that stipulated for in the kabuliat does not bind him to accept rent at that rate in future. Where there is no registered lease it was said oral evidence is admissible to prove a subsequent oral agreement, but where there is a registered lease the Judge is not entitled to dispose of the case on the ground that there was a subsequent agreement varying the terms of the original kabuliat. It was, however, held that where rent had never been realized at the rate agreed upon in the kabuliat a question of fact might arise whether the stipulation was intended to be acted upon.

8. In the present case the parties to the original contract were the father of the plaintiff and the defendant. The person seeking to enforce the contract is the plaintiff who is a minor. The acceptance of rent which is pleaded as a waiver was not by the plaintiff but by his mother and guardian. I do not think that in those circumstances any question of waiver can be successfully pleaded against the plaintiff.

9. In the result the appeal will be dismissed. The learned advocate who has appeared for the minor respondent is entitled to draw the costs in deposit.