Dave, J.:— This is a second appeal by the defendant in a suit for the arrears of rent and ejectment. Both the parties are residents of Didwana and the property relating to the suit, which is a Nohra is also situated in the same town.

2. The plaintiff respondent Shri Bhagwan's case in the trial court was that the said nohra was leased out by his father Ram Narayan to the appellant Banarsilal on First Ashadh Vadi 1 Smt. 2007 (corresponding to 1st June 1950) for one year on a rent of Rs. 60/- The appellant executed a rent-note in favour of Ram Narayan Ram Bilas which was a firm name of respondent's father. Thereafter the said property came to the exclusive share of the respondent on account of a partition in their family. The respondents father gave a notice to the appellant on 9th May 1951 informing him that the nohra had gone to the share to the respondent. It was further averred by the respondent that since he needed that property for his own personal use, he gave a notice to the appellant on 28th May, 1951 that he should give vacant possession of the property on First Ashadh Vadi 1, Smt. 2008 that on his failure to vacate the property the respondent would take legal action against him and he will have to pay an enhanced rate of Rs. 10/- p.m till the date of his eviction. It was stated that the appellant gave no reply to that notice. It was therefore prayed that a decree of Rs. 102/8 for the arrears of rent (Rs. 60/- being for the first year and Rs. 42/8 the remaining period up) to the date of the suit) and ejectment be given against the appellant.

3. In his written statement it was admitted by the appellant that he had executed the rent-note referred to by the plaintiff-respondent but it was pleaded that it was inadmissible in evidence for want of registration. It was further averred that the nohra belonged to Sukhawats, that Rambilas Ram Narayan had a decree against Sukhawats and in execution thereof they got that property, that the appellant was already in possession of the nohra and therefore he obtained constructive possession and executed a lease deed in favour of Ram Narayan Rambilas. According to him, the suit could be brought only by Ramnarayan Rambilas and the respondent was not competent to bring it. He admitted receipt of both the notices but regarding the first it was contended that it was given by one Sayed Ali who was an unauthorised person and that the second notice was invalid since an enhanced rate of rent was demanded thereby. The plaintiff's plea about his personal need of the house was not contested.

4. The trail court thereupon framed the following five issues:—

(1) Whether the lease deed dated 1st June 1930 was compulsorily registrable and hence no suit is maintainable on the basis of such a lease?

(2) Whether the notice dated 9.5.51 given by Sayed Ali on behalf of the firm Ram Narayan Rambilas was by unauthorised person and hence the defendant was not bound by it?

(3) Whether the defendant is under an obligation to pay enhanced rent?

(4) Whether the notice dated 25.5.52 was invalid owing to the clause regarding enhanced rent and the plaintiff is not entitled to get the house vacated after giving this notice? and

(5) Relief?

All the issues were decided against the defendant and the suit was decreed as prayed for.

5. The defendant went in appeal. The first appellate court upheld the trial court's decree regarding the defendant's ejectment but it amended the decree for arrears of rent. It was held that the plaintiff was not entitled to receive the rent at the enhanced rate and that he would get the rent only at the rate of Rs. 5/- p.m till the date of defendant's ejectment. The defendant is not satisfied with the decree and therefore he has come to this Court.

6. The trial court's finding on issue No. 2 was that Sayed Ali was duly authorised to give notice by the respondent's father Ram Narayan. This finding was not contested in the first appellate court as also in this Court. It is only the findings on the remaining issues which have been contested in this Court though on different grounds.

7. The first contention raised by the appellant's learned advocate is that the present suit could not be based on the document Ex. P-1 dated the 1st June, 1950, since it was compulsorily registrable and therefore inadmissible in evidence for want of registration. In the trial court it was urged that this document was compulsorily registrable because it was lease for immovable property from year to year. This contention was replied by the trial court. According to the trial court's interpretation the document purported to lease out the nohra only for one year and there was a clear stipulation between the parties that after the termination of the first year' period continuation of the lease or the restoration of vacant possession of the nohra of the plaintiff would depend upon further agreement between the parties. The appellant's learned advocate at first tried to question the correctness of the trial court's interpretation but later on conceded that such interpretation could be brone out. The actual words occurring in the said document are as follows:—

“I keep this nohra on rent for one year after that, I will continue to keep it if both of us agree amicably. If you will ask me to vacate it, I will vacate it.”

To my mind, the said language is crystal clear and it clearly shows that the nohra was rented only for one year. It is urged by the appellant's learned advocate that although Ex. P. 1 may not be compulsorily registrable under sec. 17(1)(d) of the Indian Registration Act, an instrument creating a lease of immovable property was compulsorily registrable under sec. 107 of the Transfer of Property Act and since this document was not registered, it could not be admitted in evidence to prove the lease.

8. In order to appreciate and discuss the argument raised by the appellant's learned advocate it would be proper to reproduce sec. 107. T.P Act, and secs. 17(1)(d) and 18(c) of the Indian Registration Act:—

Sec. 107— “A lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent can be made only by a registered instrument.

All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.

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

Provided that the Provincial Government may, from time to time, by notification in the Official Gazette direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.”

“Sec. 17(1)—The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1854……or this Act came or comes into force, namely:—

(d) leases of immovable property from year to year, for any term exceeding one year, or reserving a yearly rent”.

“Sec. 18:—Any of the following documents may be registered under this Act, namely:—

(c) leases of immovable property for any term not exceeding one year and leases exempted under sec. 17”.

9. A comparison of sec. 107 T.P Act and sec. 17(i)(d) of Indian Registration Act would show that leases of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent are compulsorily registrable both according to the Transfer of Property Act and the Indian Registration Act Sec. 17(1)(d) is almost the same as the first part of sec. 10. According to the Indian Registration Act, the Registration of other leases is optional as provided in sec. 18(c). According to the second paragraph of sec. 107, T.P Act however, all other leases of immovable property may be made in two ways: that is, either by a registered instrument, or by an oral agreement accompanied by delivery of possession. The appellant's learned advocate's argument is that the plaintiff respondent in the present suit did not base his suit on an oral agreement accompanied by delivery of possession but on the basis of a lease which he thought was made out by Ex. P-1 and since this document was not registered, it was inadmissible in evidence.

10. It may be clarified here that the provisions of sec. 107 T.P Act are quite plain and there can be no two opinions on the point that those lease of immovable property which are not covered by the first paragraph thereof can be made only in two ways, i.e, either by a registered instrument or by an oral agreement accompanied by delivery of possession. It is further evident from the third paragraph of the section that where the lease of immovable property is made by a registered instrument, such instrument must be executed both by the lessor and the lessee and if there are more than one such instrument, then each of such instruments should also be similarly executed by both the lessor and lessee. Then the last proviso also lays down that the provincial Government may from time to time by notification in the Official Gazette direct that leases referred above made be made by unregistered instrument or by oral agreement without delivery of possession. In the present case it is common ground between the parties that the Provincial Government has not made any notification directing that such leases may be made even by unregistered instruments. Ex. P-1 is executed only by the lessee and not by the lessor, it is an unregistered document and therefore it is not a lease-deed and as such cannot be admitted in evidence; but the question is that since sec. 107 of the Transfer of Property Act premises leases to be made by oral agreement accompanied by delivery of possession, a rent-note like Ex. P-1 can be admitted in evidence to prove the fact or oral agreement accompanied by delivery of possession. According to the appellant's learned advocate it cannot be so admitted & in support of the argument he has referred to the case of Mst. Nasiban v. Mohammad Sayed(1).

11. In that case it was held that the binding effect of sec. 17(d), Registration Act, and sec. 107. T.P Act, was to exclude from evidence all unregistered lease which are reduced to writing

12. It may be mentioned that in a later case of Tulsiram Rajaram v. Govinda Ramji(2) the correctness of the opinion expressed in the above case (1) was doubted. In an earlier case of the same High Court, Birdichand v. Popatlal (3) it was held that a kabuliyat or rent-note was not required to be registered under sec. 107 of the Transfer of Property Act since it was not a lease granted by the lessor. It was observed that “a lease has to be signed both by the lessor, and by the lessee. Consequently, a rent note (kabuliyat) signed only by the intending lesses is not a lease under the Transfer of Property Act and would not kabuliyat in that case was held admissible in evidence.

13. The appellant's learned advocate has next referred to the case of Mst. Malan v. Dayal Singh (4). In that case the plaintiff had brought two suits for recovery of rent in respect of certain property. The lease were for a period less than one year. The plaintiff had not relied on any oral agreement. The suit was based on rent-notes which were not registered and the plaintiff had not sued on the basis of his title for recovery of compensation for use and occupation. The defendants were already in possession of the property before the execution of the leases. Under those circumstances it was held by Bhide, J. that the plaintiff could only succeed if he had sued for rent on the basis of registered leases executed by the lessor and the lessee in view of the provisions of secs. 105 and 107, T.P Act.

14. It may be pointed out that in another case to Taj Din v. Abdul Rahim(5) a Division Bench of the same High Courts including Bhide, J. himself, and held an unregistered rent deed for less than a year admissible in evidence in that case it was held following the case of Ramkrishna Jha v. Jainandan Jha (5) that sec. 107 of the Transfer of Property Act was not governed by the definition of the term “lessee” in the Registration Act but by the definition in sec. 105 of the Transfer of Property Act. It was therefore observed as follows:—

“It seems to my mind thus clear that the rent deed in question in the present case cannot be considered to be a lease within the meaning of sec. 107, T.P Act. If it is not a ‘lease’ under that section, it would not, of course, as a rent-deed for less than a year, require registration under the Registration Act and this was not disputed before us. It would consequently be admissible in evidence though unregistered.

The rent-deed in that case recited that the house had been already taken on rent from the plaintiff. It was held that:—

“This is consistent with the existence of an oral lease prior to the execution of the rent-deed. The possession of the house was already with the defendant. Consequently; there seems to have been in this case an oral lease “accompanied by possession and the deed of rent can be therefore used as a corroborative piece of evidence to support the terms of the lease”.

This case was referred with approval by a Full Bench of the same High Court in the case of Mohanlal v. Ganga Singh(7).

15. Other High Courts have also taken the view in favour of the admissibility of a rent-note in evidence. In the case of Ganga Sahai v. Badrual Islam(8) a kirayanama executed by the tenant was considered in evidence and it was held that it was perfectly legal and having been executed by the tenant he was bound by the terms thereof unless he was able to prove fraud or coercion,

16. Similarly in the case of Maqbool Ahmad v. Debi(9) it was held that the person executing the rent-note is bound by its terms as a matter of his undertaking although the other party who has not signed the document would not be bound by them.

17. In the case of Ramanna…Defendant- v. H.S Rangaswamy…Plaintiff-.(10) a rent chit executed by the tenant was held to be admissible in proof of the admission of the lease.

18. A similar view was taken in another case of Hasson v. Mirchandani(11).

19. Thus, it is clear that the two cases on which the appellant's learned advocate has tried to base his arguments have not been followed in later cases of the same High Courts and other High Courts have taken a different view as mentioned above. I also think that an unregistered rent-note like Ex. P-1 is not compulsorily registrable under the Indian Registration Act sec. 17(1). It does not create a lease under sec. 107 of the Transfer of Property Act and therefore it would not be admissible as a lease-deed but if there is an oral agreement accompanied by delivery of possession, then I see no reason why such a document should not be admitted in evidence to corroborate the fact of such agreement and the terms thereof.

20. The appellant's learned advocate has next contended that in the present case the respondent did not base his suit on an oral agreement and that the appellant being already in possession of the property on 1st June, 1950, no fresh delivery of possession was given to him and as such the present suit could not be maintained. It may be remarked in this connection that undue stress should not be laid on the structure of the pleadings in a suit like the present one when the defendant has fair notice of the case which has been put up by the plaintiff. It cannot be denied that in cases where there is no registered lease-deed it should be mentioned in the plaint there was an oral agreement about the lease between the landlord and the tenant followed with the delivery of possession of the property. The suit should not simply be based on an unregistered rent-note because it can be used only in corroboration of the said oral agreement but the necessity of such a formality should not be over-stressed.

21. In the case of Someshwer Dutt v. Tribhuwan Dutt (12) it was observed by their Lordships of the Privy Council that they would be disinclined to stress the structure of the pleadings in a suit too strictly, if fair notice of the case to be made by the plaintiff has been given and issue has been joined on an enquiry but faintly adumbrated in the pleadings. In the present case the defendant had in his written statement admitted that he had taken the house on rent from Ram Narayan Ram Bilas. The rate of rent was not disputed by him. In this statement dated 9th July 1952 which he gave in the trial court, he again made the following admission:—

“I took the Nohra from Ram Bilas Ram Narayan on rent. The Nohra was in possession of Ram Narayan Rambilas when the rent not was executed…………. Ram Narayan was the proprietor of the firm Ram Niwas Ram Narayan.”

Thus, there was no dispute about the question that the defendant took the Nohra on rent from Ram Narayan, that Ex. P-1 was executed by him and that he also got delivery of possession of that property from Ram Narayan. There was an oral agreement of lease allowed with delivery of possession between Ram Narayan and the appellant and after they had settled the terms of the lease Ex. P-1 was executed, Ordinarily a rent-note is executed after a oral agreement about the lease between the parties. In the present case, Ex. P. 1 was similarly executed after an oral agreement between the appellant and Ram Narayan. The appellant also got delivery of possession from Ram Narayan, Ex. P-1 only corroborates the facts which are already apparent from the pleadings and statements of the parties. In my opinion, it was rightly admitted and therefore the first contention raised by the appellant's learned advocate must fail.

22. The next contention raised by the appellant's learned advocate is that there was no privity of contract between the respondent and the appellant. The appellant had taken the house on rent from Ram Narayan and therefore he alone could bring the suit the respondent could bring the suit only if Ram Narayan had transferred the property to him as required by sec. 109, T.P Act. The respondent has stated that he got the property in partition. Learned advocate contends that “partition” is not covered by the term “Transfer of property” according to sec. 5 of the T.P Act and thus there being no valid transfer in the respondent's favour, the suit filed by him was not maintainable.

23. The question for determination therefore is whether “partition” included within the term “transfer of property” and the provisions of sec. 109 T.P Act can be applied to a person who receives the property leased in his share by partition. Sec. 5 of the T.P Act which defines the term “transfer of property” runs as follows:—

“In the following sections “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, or to himself and one or more other living persons; and ‘to transfer property’ is to perform such act.

“In this section ‘living person’ includes a company or association or body of individuals, whether incorporated or not but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies associations or bodies of individuals.”

The word “conveys” which appears in this section had led to a difference of opinion of the question whether partition would be covered by the term “transfer of property.”

24. In the case of Indoji Jithaji v. Kothapalli Rama Charlu (13) it was observed by Spencer, J. that a partition “effects a change in the mode of enjoyment of the property and is not an act conveying property from one living person to another”, and therefore it was held that partition would not be treated as a transfer of property within the meaning of sec. 5 referred above. It is on this argument that the appellant's learned advocate has also laid stress.

25. This view, however, came for consideration before the same High Court in the case of Rasa Goundan v. Arunachela Goundan(14) and it was observed by a Division Bench as follows:—

“One of the objects of a suit for partition is to alter the form of enjoyment of joint property without at the same time depriving the partition of its character as a transfer and that we have been shown no other authority in agreement with the opinion of Spencer, J. Holding that a partition is a transfer of property, to which sec. 53 is applicable, we reject this ground of appeal.”

In holding the above view, the learned Judges placed their reliance on Altabanessea Bibi v. Saftulla Mia (15) where it was observed as follows:—

“Partition signifies the surrender of a portion of a joint right in exchange for a similar right from the co-sharer. Partition is thus the division made between several persons of joint lands which belong to them as cor proprietors, so that each becomes the sole-owner of the part which is allotted to him; the essence of partition is that the property is transformed into estates in severally and one of such estates is assigned to each of the former occupants for his sole use and as his sole property.”

This view was affirmed again in the case of Ramaswami Chettiar v. Kathamuthu Thevar(16).

26. In the case of Sadhuram v. Hirthi Singh & Co. (17) also it was observed that “a partition is a transfer as defined in the Transfer of Property Act.”

27. Learned advocate for the appellant argues that in the said cases partition was considered as a transfer of immovable property within the meaning of sec. 53 T.P Act and that the same meaning cannot be extended to the ‘transfer’ envisaged in sec. 109 T.P Act. He has also referred to the view of the learned Commentator Sir D.F Mulla on this subject in his Commentary on the Transfer of Property Act (3rd Edition) at page 27 C. He has expressed his view in the following words:—

“The correct view, it is submitted, is that the partition is not a transfer and therefore not strictly within this section, but the principle of the section applies to a fraudulent partition.”

To my mind the view expressed by the learned commentator is itself debatable and it is doubtful if it can be said with certainty that in partition there is no transfer of property in the wide sense of that term in any case. This view may be overreact on a very rigid interpretation of sec. 5 of the Transfer of Property Act but this Act itself is not exhaustive and it does not cover all shorts of transfers of property. The preponderance of opinion now is in favour of the view that ‘partition’ is also included within the term ‘transfer of property’. It is true as the appellant's learned advocate has contended that the cases referred above are in connection with the interpretation of this term as it appears in sec. 53, T.P Act, but I do not see any reason why the same interpretation should not be extended to the same term which appears in sec. 109 of that Act. Whenever a manager of a joint Hindu family transfers the property as a lessor to a lessee, he does it not only on his own behalf but also on behalf of the joint family, in other words, other members of the joint family are also lessors in that case even though their names may not be expressly mentioned in the lease-deed as such. When partition of such a family is effected and the property leased out comes to the share of only one member of the family, he also becomes lessor after the partition, Other members of the family surrender their rights in that property and transfer that property in the vide sense of the term to that member in return for other properties which they receive in their respective shares. I therefore see no reason why the principle of sec. 109 should not be extended to that person who becomes the sole lessor after the partition. It is for other members of his family to question his right if they so choose, but the lessee cannot justly refuse to recognise him as the sole lessor if the person who had leased out the property to him informs him of the change by partition. In the present case it is admitted by the appellant's learned advocate that Ram Narain who had leased out the property to him and who is father of the plaintiff Banarsilal had informed him by notice Ex. D-1 that the property which was leased out to him had gone to the share of the plaintiff in partition and that therefore he was its sole-owner. The fact of his partition has not been challenged. Ram Narayan came in the witness-box in the trial court and no question was put to him by the appellate to throw any doubt on the fact of partition. Under the circumstances I do not think the present suit.

28. In the case of Skattarsingh v. Rawela (18) it was held that the ‘partition’ is a transfer of property’ which the meaning of secs. 5 and 109 of the Transfer of Property Act. Even if the strict view taken by Sir D.F Mulla feared above be taken and it be held that ‘partition’ is not included within the term ‘transfer of property’ as mentioned in sec. 5 even then as observed by the learned commentator himself, the principle embodied in sec. 109, T.P Act would apply in the same manner as it has been held to apply in sec. 53 of the T.P Act.

29. The third contention raised by the appellant learned advocate is that the notice Ex. P. 2 given by the plaintiff was not valid because the appellant was required to vacate the premises on Asadh Vadi 1, Smt. 2008 which was not the day expiring with the end of the month of the tenancy. It has been pointed out that the tenancy in the present case commenced on the 1st of June 1950 according to Ex. P-1 and therefore the notice should also have been given according to Gregorian calendar. The respondent's learned advocate has urged in reply that Ex. P. 1 shows that the monthly tenancy between the parties was according to the months of Vikram Samvat and therefore the notice was also given according to the same calendar.

30. Learned advocate for the appellant has referred in support of his view to the case of Calcutta Landing and Shipping Co. v. Victor Oil Company Ltd. (19) in which it was observed that monthly tenancy under sec. 106 of the T.P Act should be according to the English calendar in view of the provisions of sec. 33 of the General Clauses Act. This view was, however, not adopted in the later case of the same High Court Ahmad Ali v. Jyotsna Kumar (20) where it was held that sec. 106 of the Transfer of Property Act clearly contemplates any kind of ‘monthly tenancy’ and it is well known that a monthly tenancy may be according to English calendar Bengali calendar, Samwat calendar' and so forth, and may commence on any day of the particular month, say, from the 5th one to the 4th of the next and so on.” I respectfully agree with this view. The appellant's learned advocate himself later conceded that this was the correct view and that the tenancy according to Samwat calendar did not militate against the provisions of sec. 106 T.P Act. He, however, continued to argue that in the present case the calendar agreed upon between the parties was the English calendar and not the Samwat calendar. This contention is not tenable because in Ex. P-1 what was first mentioned was the Samwat calendar and the tenancy commenced on 1st Asadh Vadi I, Smt. 2007. It appears that the corresponding date according to the English calendar was also mentioned therein, later but it was only to be more definite about the commencement of the tenancy. In the trial court the validity of the notice was questioned only on the ground that it contained an offer about enhancement of rent. It was never questioned that the notice was bad because the monthly tenancy was according to the English calender. The contention whether the parties by their agreement and conduct contemplated to observe the Samwat calendar or the English calendar was a mixed question of law and fact. If the appellant had raised this point in the trial court, the respondent could easily show by other document also that the calendar in the contemplation of the parties was only the Samwat calendar and not the English calendar. It appears from the Judgment of the first appellate court that this point was not raised in that court. The absence of a reference to this point in the judgment of the first appellate court raise a presumption that it was not pressed there. This mixed question of law and fact cannot therefore now be raised for the first time in second appeal. The ground on which the validity of the notice was questioned in the trial court was not found by it to be correct. That ground was never raised again. The appellant cannot now raise a fresh ground. It is conceded that according to the Samwat calendar, the notice was not invalid. This objection is therefore dismissed.

31. The last contention raised by the appellant's learned advocate is that according to Ex. D-1, partition between the plaintiff and his father was effect on 2nd Asadh Vadi 8, Smt. 2007 while the tenancy had commenced on 1st Asadh Vadi 1, Smt. 2007 and therefore the plaintiff could not demand rent for one month and seven days. It is pointed out that according to sec. 109, T.P Act, the transferee is not entitled to arrears of rent due before the transfer. It is true that according to sec. 109 of the T.P Act, the transferee is not entitled to arrears of rent due before the transfer but in the present case the arrears of rent could be due only at the end of the year because the tenancy was for a fixed term of one year. The plaintiff's father Ram Narayan had given to the appellant a clear notice that the plaintiff alone was entitled to rent from the beginning of the tenancy. The appellant has not taken the plea that he had paid the rent for the said period of one month and seven days to the plaintiff's father. Under the circumstances, the plaintiff could claim rent even for that period from the defendant and the courts below have not committed any mistake in passing the decree for the entire sum of Rs. 60/- for the first year.

32. The only question to be considered is regarding the rate of rent about the period after the determination of the lease. The plaintiff had claimed rent at the rate of Rs. 10/- p.m from Asadh Vadi 1. Smt. 2008 according to his notice. The trial court had allowed the claim for enhanced rent but the first appellate court has amended the decree and allowed the rent only at the stipulated rate of Rs. 5/- p.m The plaintiff respondent has therefore filed cross-objection in this Court. His learned advocate contends that the first appellate court should not have dismissed the respondents' claim for enhanced rent, for the appellant had contumaciously remained in possession of the property even after he was served with a notice that he would be ejected and would also be liable to pay enhanced rate of rent. In support of his argument he has referred to the case of Sunder Singh v. Ram Saran Das(21) in which it was held that ordinarily the proper measure of damages in cases where a tenant contumaciously holds over is twice the amount of rent payable by the tenant. This view was followed in the case of Mubarak v. Rughnathdas (22) and Mohanlal v. Tulsi Das(23).

33. It may be point out that a lessor cannot as of right claim enhanced rate of rent according to the notice because a demand for the enhanced rate given in the notice is in the nature of an offer and unless it is accepted by lessee, he cannot enforce that condition by his unilateral action. In the present case, this demand was not accepted by the lessee. In fact, it the demand was accepted, the plaintiff could not bring a suit for ejectment. It was conceded by the respondent's learned advocate that he could not claim the enhanced rent according to any contract but it should be awarded by the Court by way of damages. It appears that in the case of Sunder Singh v. Ram Saran Das(21) the learned Judges had allowed enhanced rate of rent by referring to sec. 73 of the Indian Contract Act. It was found that the defendants in that case were making good profits, that they had refused to vacate the premises in a contumacious manner and they had set up frivolous pleas to defeat the plaintiff's claim. In the present case, however, it appears that the appellant was in possession of the property for a number of years even before he executed the document Ex. P-1. That document also shows that it was agreed between the parties that the end of one year they would consider whether to extend the tenancy or not. The defendant could not perhaps vacate the premises forthwith and therefore he thought of extending the period of tenancy by this means. There is nothing on the record to show that the respondent had suffered actual loss on account of the defendant's continuing in possession. The trial court did not consider why it was necessary to allow damages to the plaintiff. The first appellate court has gone into that matter and considered it proper that damages should not be allowed in the present case. The grant of damages is in the discretion of the Court and I do not see good grounds to interfere with that discretion which has been exercised by the first appellate court in the present case. The cross-objection is therefore disallowed.

34. The result is that both the appeal and the cross-objection are dismissed. The parties will receive costs from each other in proportion to their success in this Court.