NARAYAN PRASAD SUKUL Vs. RAJKISHORE MISHRA & OTHERS

JUDGEMENT

(1.) THIS is an appeal by deft. 1 against a decision of the Additional Dist. J. of Manbhum Singhbhum, affirming a decision of the Subordinate Judge of Purulia restraining deft. 1 from executing against the pltfs. respondents a decree obtained by him in Title Suit No. 395 of 1940 in the Court of the Additional Munsif, Purulia.

(2.) THE dispute relates to a building in the town of Purulia known as Pratap Natya Mandir & the premises appertaining thereto. This building is intended for the performance of cinematograph shows & admittedly belonged to Akhoy Kumar Sen (pro forma deft. 3), by whom it was transferred to its present owner Shreemati Radharani Dassi (pro forma deft. 2). The facts as found are that the cinema hall was formerly let to the proprietors of the Shankar Talkies, who held it for some years but relinquished it on filling to obtain from the Executive Engineer, Hazaribagh Division, a certificate of soundness necessary under the law for the holding of cinematograph shows therein. It was then taken by one Nagendra Nath Dutta, who was unable to make it fit for the purpose & surrendered it in March 1940. Pltf. 1, Raj Kishore Misra, then entered into possession under an agreement entered into on 24 -3 -1940 with deft. 2, which is in the following terms :

(3.) THE main argument on behalf of the appellant is on this line; the pltfs. rely upon two documents, (1) the agreement to lease of 24 -3 -1940 & (2) the lease of 3 -11 -1941; the first is inadmissible for want of registration, & the second is affected by the rule of lies pendens & does not affect the rights of deft, 1 under his decree. Under s. 17 (1) (d), Registration Act, lease of immovable property from year to year or for any term exceeding one year or reserving a yearly rent are required to be registered. Under cl. (7) of S. 2, a lease is defined to include "an agreement to lease". The meaning of this expression is now well settled. It must be an agreement which "effects an actual demise & operates as a lease" & "creates a present & immediate interest in the land" Hemanta Kumari v. Midnapur Zamindari Co, 47 Cal. 485. It must be distinguished from an agreement to create a lease on a future date, Panchanan Bose v. Chandi Charan, 37 cal. 808 & Bichardas Damodar v. Ahmedabad Borough Municipality, I. L. R. (1941) Bom. 529. It is not necessary to examine at length the several decisions which were cited before us. The cases in which the agreement was held to be a lease within the meaning of cl. (7) of S. 2 were all cases in which words of present demise had been used. The oriterion in all the cases is the intention of the parties. Ramjoo Mahomed v. Haridas Mullick,, 52 Cal. 695, Sanjib Chandra Sanyal v. Santosh Kumar Lahiri,, 49 Cal. 507; Poole v. Bentley,, (1810) 104 E, R. 66, Purmananddas Jiwandas v. Dharsey Virji,, 10 Bom. 101; Harinath v. Promotho Nath, : 25 C. W. N. 550; Nur Muhammad Veerjibhai Veelmahomed v. Natwar Lal,, 45 ALL. 220 and Khodaijatul Kubra v. Krishna Pershad, : A. I R. 1930 Pat. 530.