Harries, C.J.This is a Letters Patent appeal from a decision of Agarwala, J. See Jagdish Chandra Deo Dhabal Deb Vs. Biseswar Lal Agarwalla and Others, in a second appeal affirming concurrent decisions of the Courts below. The suit giving rise to this litigation was brought by the plaintiff for arrears of rent for the years 1342 to 1344 in respect of survey plots Nos. 1618, 1618-1953 and 1621. The plaintiff is the owner of the Dhalbhum estate, and these plots form part of the land of a village within his estate. The learned Munsif, who heard the case at first instance, dismissed the plaintiffs claim holding that the plaintiff had ceased to be the landlord of plot No. 1618 and that he had no right to recover rent for the remaining two plots as the whole three plots formed one holding held under a consolidated rent. The decision of the learned Munsif was upheld by the learned Subordinate Judge, and in this Court the learned Single Judge came to the conclusion but on somewhat different grounds that the plaintiffs suit was rightly dismissed.

2. To appreciate the points involved, it will be necessary shortly to set out the main facts of the case. It appears that in 1914 a Pradhan of the estate granted a lease of plot No. 1618 to one Gaya Prasad. Some time afterwards, Gaya Prasad granted a verbal lease of this plot to the defendants father. It appears that the Dhalbhum estate was the subject-matter of litigation, and a receiver had been appointed by the Court. On 10th April 1925, the defendants father took a lease of this same plot from the receiver of the Dhalbhum estate, and it would appear that he was doubtful as to whether Gaya Prasad had any right to settle the land with him.

3. In the year 1929 the plaintiff, who had become entitled to the Dalbbum estate, brought a suit against the defendants for recovery of possession of Plot No. 1618 and for the ejectment of the defendants therefrom. In that suit, the plaintiff alleged that neither Gaya Prasad nor the receiver of the estate had any right to grant a lease to the defendants. On 23rd August 1930, this suit was compromised, and in the terms of compromise it was agreed that the defendants should have a lease of Plot No. 1618 and the two other Plots Nos. 1618-1953 and 1621 for a term of twenty years in accordance with the terms contained in a kabuliat executed by the defendants a few days previously, that is on 19th August 1930. The annual rental fixed for these three plots was Rs. 116.

4. In the year 1931 the plaintiff sued Gaya Prasad for recovery of possession of Plot No. 1618 and other plots not included in this suit. This litigation dragged on, but on 15th July 1935 the plaintiffs suit was ultimately dismissed in this Court on the ground of limitation. In the meantime, the plaintiff had sued the defendants in the years 1934 and 1935 for rent of the land let to them and ex parte decrees were obtained in each of these years. It is to be observed that the decree of the High Court dismissing the plaintiffs suit against Gaya Prasad was subsequent to these decrees for rent obtained against the defendants. After the termination of the litigation between the plaintiff and Gaya Prasad, the latter served a notice upon the defendants calling upon them either to take a fresh settlement of Plot No. 1618 from him or to quit the plot. In the year 1936, the defendants were recorded in the record of rights as tenants holding under Gaya Prasad. In the year 1937 the suit giving rise to this appeal was instituted for the recovery of rent as I have already stated.

5. The learned Munsif and the lower Appellate Court came to the conclusion that the relationship of landlord and tenant had ceased to exist between the plaintiff and the defendants and that there had been an eviction by title paramount. In the view of both Courts, no claim could be made for rent in respect of Plot No. 1618 though the plaintiff was clearly the landlord with respect to the other two plots. However, there had been no apportionment of rent and that being so both the Courts refused to pass a decree for rent in respect of the other two plot Rule The learned single Judge of this Court preferred not to go into the question as to whether there had been eviction by title paramount. In his view, the plaintiff had not established a relationship of landlord and tenant in the year 1937 when this suit was brought and accordingly he held it must fail and dismissed the appeal.

6. The learned Single Judge was of opinion that no lease between the plaintiff and the defendants could be proved in this case. In the litigation in the year 1930, the parties had compromised, and the terms of the compromise, in the view of the learned Judge, amounted to a present demise. That being so the compromise could not be admitted in evidence unless it was registered. The learned Single Judge followed a decision of this Court Sachindra Mohan Ghose Vs. Ramjash Agarwalla, , in which it was clearly laid down that in a case such as the present the compromise was inadmissible in evidence for want of registration. Dr. Dwarka Nath Mitter, who has appeared on behalf of the appellant, has conceded that if the compromise amounted to a present demise of the property the document was inadmissible for want of registration. He has contended, however, that the agreement did not amount to a present demise. He has urged that what was agreed between the parties was that a lease would be granted in the terms of a kabuliat to be executed in the future by the defendants. He has urged that where the granting of a lease is made contingent upon some uncertain event then there can be no present demise. The position, however, does not arise in this case, because the agreement is an agreement for a lease upon the terms of a kabuliat already executed. As I have stated, the compromise was entered into on 23rd August 1930, whereas the kabuliat was actually executed on 19th August. The terms of the compromise amounted to a present demise, and, therefore, the compromise would have to be registered before it became admissible.

7. There is, of course, the kabuliat which was executed by the defendants on 19th August 1930, but, as pointed out by the learned Single Judge, that kabuliat was not by itself Sufficient to create a valid lease as there was no corresponding patta executed by the plaintiff. That has been repeatedly held in this Court, and the statement of the law by the learned Single Judge is not challenged by Dr. Dwaraka Nath Mitter. There is, therefore, no document which can be looked at by the Court which constitutes a lease of this property.

8. Dr. Dwaraka Nath Mitter, however, urged that the defendants were estopped from alleging that they were not tenants of the plaintiff by reason of the rent decrees obtained in the years 1934 and 1935. There can be no question that these rent decrees do operate as res judicata between the parties. It is not open to the defendants to allege that in the years 1934 and 1935 they were not the tenant of the plaintiff: but these decrees do not prevent the defendants from relying upon facts which show that whatever the position was in 1934 and 1935 they were not the tenants of the plaintiff in the year 1937 when this suit was instituted.

9. Much had happened after the last decree for rent in 1935. The litigation between the plaintiff and Gaya Prasad terminated by a decree of this Court in favour of Gaya Prasad. The title of these rival landlords has been determined in favour of Gaya Prasad. The latter thereupon served a notice upon the defendants calling upon them either to execute a settlement with him or to quit the property. There is no direct evidence that the defendants have in fact executed any written document, but, according to the record of rights, they are now the tenants of Gaya Prasad. Dr. Dwaraka Nath Mitter has contended that the entry in the record of rights should not carry much weight. It is most significant that after the termination of the litigation in favour of Gaya Prasad and the notice by the latter to the defendants the record of rights published in 1936 should show the defendants as tenants of Gaya Prasad and not tenants of the plaintiff. It seems to me that the record of rights, which is a public document, clearly shows that the defendants after the notice by Gaya Prasad, accepted the latter as their landlord and attorned to him. That being so, it cannot possibly be said that the defendants were not in 1937 in a position to deny the plaintiffs right to sue them for rent. The decrees of 1934 and 1935 merely estop them from alleging that in those years the plaintiff was not their landlord. The subsequent events can be relied upon, and in my view the effect of those events is to establish beyond doubt that in 1937 the defendants had been evicted by title paramount and the plaintiff was not entitled to recover rent from them.

10. Dr. Dwaraka Nath Mitter has contended that the true position in this case was that the defendants were not certain who was their landlord and in that state of uncertainty they had entered into tenancy agreements with both the plaintiff and Gaya Prasad. In such, a case Dr. Dwaraka Nath Mitter argued that the defendants were bound to pay rent to both, and he relied upon AIR 1937 251 (Privy Council) . In that case the defendants had taken leases from two sets of landlords, and when sued they pleaded that the plaintiff was not entitled to recover rent as he had no title to the property. They put forward the defence of eviction by title paramount but from the facts of the case it is clear that there was no such eviction. The Privy Council case was a clear case of a tenant entering into separate agreements with rival landlords. The respective rights of landlords had never been decided in a suit between them, and as pointed out by Sir George Bankin, who delivered the judgment of the Board, the defence of eviction by title paramount failed completely on the facts. In my view the present case is clearly distinguishable from the Privy Council case relied upon by the defendants, because in the present case there has been an adjudication between the rival landlords, and the successful landlord has called upon the defendants to acknowledge his title or be ejected. Further, it is clear from the record of rights that they have acknowledged his title and are now his tenants. In my judgment, the Courts below were right in holding that the plaintiffs claim with regard to Plot No. 1618 failed.

11. It has been contended by Dr. Dwaraka Nath Mitter that this Bench in Letters Patent appeal should at least pass a decree in favour of the plaintiff with respect to the rent due for Plots Nos. 1618-1953 and 1621. It is to be observed that the learned Single Judge was not asked to apportion the rent, and there is no such ground in the memorandum of the Letters Patent appeal. In any event, this Bench could not possibly apportion the rent, because no evidence has been given throughout the case as to the proper rent to be apportioned to these two plots. Before such apportionment can be made, evidence will have to be given not only as to the areas of plots but the quality of the soil and so forth. No such evidence was given in this case, and, that being so, the Courts, even if they had desired to do so, could not have apportioned the rent. Mr. S.N. Bose has told us that in the record of rights Plot No. 1618 is shown as kabillagan and the other two plots are similarly recorded. In a properly instituted suit the plaintiff may obtain a fixation of rent, but that he cannot do in this case. In my view, the learned Single Judge was right in this case, and that being so appeal fails, and I would dismiss it with costs.

Fazl Ali, J.

I agree.