Chatterji, J.:— This appeal, which is by defendant 1, was originally presented as a second appeal from the decision of the learned District Judge of Patna confirming the decision of the learned Subordinate Judge, 2nd Court, Patna. The appeal was valued at Rs. 2929-1-11 which was the value of the suit and also of the appeal before the District Judge. The stamp-reporter of this Court was of opinion that the suit as well as the appeal to this Court should have been valued at Rs. 7679-1-11. His report was accepted and the appeal was valued at Rs. 7679-1-11. The valuation of the suit was also similarly amended, and the plaintiffs-respondents paid the deficit court-fee on the plaint. The appeal was accordingly treated as a first appeal, ignoring the decision of the District Judge which must be deemed to have been passed without jurisdiction.

2. The suit was brought by the plaintiffs for recovery of possession of 9 annas share of village Jalalpur Paindapur and for recovery of Rs. 2279-1-H as mesne profits, or, in the alternative, as damages. The plaintiffs claimed title to the disputed 9 annas share under a thika lease dated 28-6-1940 granted to them by defendant 2 at an annual jama of Rs. 650 for the period from the beginning of 1348 to 1854 Fasli. The disputed 9 annas share had previously been given by defendant 2 in zarpeshgi lease to defendant 1 under a patta dated 13-10-1939 for the period 1341 to 1347 Fasli. The plaintiffs' case was that the lease of defendant 1 came to an end in 1347 and he gave up possession of the disputed property, and that the plaintiffs came in possession under the lease dated 28-6-1940 granted to them by defendant 2, but subsequently as a result of a proceeding under Section 144 of the Cr PC, defendant 1 dispossessed the plaintiffs from the disputed property on 12-3-1941. As in the course of the proceeding under S. 144 defendant 1 claimed that Rs. 100 was still due to him from defendant 2 on account of the zarpeshgi money, the plaintiffs deposited the sum of Rs. 100 in favour of defendant 1 under Section 83 of the Transfer of Property Act, on 30-5-1941. The plaintiffs then brought the present suit on 13-6-1941.

3. The suit was contested by defendant 1 on the grounds, inter alia, that the plaintiffs never came in possession of the disputed property, that at the time of wasilbaqi on 28th Jeth 1347 defendant 2 demanded from defendant 1 Rs. 100 more besides Rs. 108-13-3 due to him, that defendant 1 paid this amount to defendant 2 and was allowed to continue in possession of the disputed property, and that the plaintiffs acquired no valid title under their alleged lease. Defendant 2 filed a written statement supporting the claim of the plaintiffs.

4. The learned Subordinate Judge who tried the suit held that the plaintiffs acquired a valid title to the disputed property under the lease dated 28-6-1940, and that defendant 1 had no right to remain in possession, his dues having been paid off. The Subordinate Judge accordingly decreed the suit in these terms:

“Plaintiffs are declared to be the thieadars of the property in question and they are to recover possession of it. The amount of mesne profits to which they may be entitled will be ascertained in a subsequent proceeding.”

5. The first point argued by Mr. Nawal Kishore Prasad No. 1 is that the plaintiffs' lease is not valid inasmuch as it contravenes the following provision of Section 107 of the Transfer of Property Act:

“Where a lease of immoveable 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.”

6. The plaintiffs obtained a registered patta dated 28-6-1940 from defendant 2 and executed in favour of the latter a registered kabuliat on the same day. The patta was executed by defendant 2 alone, while the kabuliat was executed by the plaintiffs only. The lease, of course, was created by the patta, and this instrument should have been executed by both the lessor and the lessee. This not having been done, there is no valid lease created in view of the aforesaid provision of Section 107.

7. It is argued by Mr. Dasu Sinha on behalf of the plaintiffs respondents that as the patta was executed by defendant 2 and the kabuliat by the plaintiffs, these two instruments must be treated as one, in which case the requirements of the aforesaid provision of S. 107 must be taken to have been satisfied. I am unable to accept this contention. Even assuming that the kabuliat may be regarded as an instrument creating the lease, there were un-doubtedly two instruments, namely, the patta and the kabuliat by which the lease was created, and according to the aforesaid provision of S. 107, both these instruments were required to be signed by both the lessor and the lessee.

8. It is also contended by Mr. Dasu Sinha that the plaintiff's lease is an agricultural lease, and, therefore by reason of Section 117 of the Transfer of Property Act, this lease will be exempted from the operation of S. 107 of the Act. The contention that the lease is an agricultural lease is sought to be supported by the following recital in the patta. Ex. 3:

“18 bighas and 15 kathas of khudkast land belongs to me, the declarant in the said mauza. The thikadars should themselves make arrangement for its cultivation and send polished rice to me the declarant.”

9. It is said that the thikadars were given the right to cultivate the khudkast lands, and, therefore, the lease was for agricultural purposes. But plaintiff 1 (P.W 1) admitted in his evidence: “There is no khudkasht land in the village”. The patta Ex. 3 itself recites “The thikadars will have no right of enhancing the rent of the khudkasht land.” The patta ex. 3, read as a whole, seems to be a thika lease for the collection of rents. Such a lease has been held by a Full Bench of this Court in [Maheshwari Prasad v. Manrajo Kuer*] 23 Pat. 1851 to be a lease not for agricultural purposes. Mr. Dasu Sinha relies on the decision of this Court in [Sri Ram Chandra Naik v. Ajodhya Singh] 15 Pat. 82 in which a lease which was for collection of agricultural rents and also gave the lessee the right to cultivate lands was held to be an agricultural lease governed by the Tenancy Act; but this was considered in the said subsequent Full Bench case.

10. It is further suggested by Mr. Dasu Sinha that the thika patta Ex. 3 is really not a lease but a mortgage. The distinction between a zarpeshgi which amounts to a lease and a zarpeshgi which amounts to a mortgage was pointed out by Dawsan-Miller, C.J sitting with Mullick, J., in [Kesho Prasad Singh v. Chand rika Prasad Singh] 2 Pat. 2173 in the following words:

“In a zarpeshgi lease properly so called there is an advance to the lessor in consideration of which the lessee is given possession of the land for a term during which he recoups himself for the sum advanced and interest out of the profits of the land of which he is put in possession. There is no question of redemption upon paying off an advance. The lease terminates at the expiration of the term and the lessor may re-enter as on the termination of any other lease. The re-entry does not depend upon the repayment of the advance nor can the property be held after the determination of the lease to secure repayment as there is nothing to repay. The transaction is-really one in which rent is paid in a lump sum in advance instead of by instalments during the term. Where, however, the interest created in the lessee continues after the expiration of the term until the advance which is essentially a loan and not an advance of rent, is repaid, the transaction, in my opinion, has the essential characteristics of a mortgage.”

11. In the present case there is no provision in the thika patta Ex. 3 which gives the thikadar the right to remain in possession after the expiry of the period of the thika until the repayment of the peshgi money. On the contrary, the patta Ex. 3 recites:

“the remaining peshgi money which will be found due in the final year will be set off towards the rent in the final year and the said mauza will come in my sir possession.”

12. Nor is there any provision in this patta to suggest that the thikadar was to remain in possession of the property as security for repayment of the advance made by him. In the circumstances, this thika patta cannot be regarded as a mortgage.

13. Lastly, it is urged by Mr. Dasu Sinha that even though the patta Ex. 3 may not create a valid lease, the lease may be operative as a lease for one year, inasmuch as it was accompanied by delivery of possession. According to Section 107 of the Transfer of Property Act, a lease for one year may be made.

“either by a registered instrument or by oral agreement accompanied by delivery of possession.”

14. The argument of Mr. Dasu Sinha cannot succeed, unless it be held that the lease was created by oral agreement accompanied by delivery of possession. The plaintiffs never made out a case that the lease was created by an oral agreement. Their definite case was that the lease was created by the registered patta Ex. 3.

15. Even assuming that the plaintiffs may be allowed to make out a case that the lease was created by an oral agreement, it must be proved that it was accompanied by delivery of possession. On the question of possession, the learned Subordinate Judge appears to have accepted the plaintiffs' case, though he does not give a clear and definite finding, because he says:

“But if the question of possession and dispossession of the plaintiffs is to be decided, I see no reason to disbelieve their case.”

16. It seems to me that the evidence adduced by the plaintiffs to prove that they were put in possession is not convincing. The evidence of plaintiff 1 (P.W 1) is that he came in possession of the property on 5th or 6th Asarh 1347. The thika patta Ex. 3 is dated 28-6-1940 which corresponds to 9th Asarh 1347. Admittedly there was a proceeding under S. 144 as a result of which defendant 1 is said to have dispossessed the plaintiffs on 12-3-1941. Defendant 1, who had admittedly the zarpeshgi lease of the property up to 1347, claimed to have continued in possession with the result that there was a proceeding under S. 144. The plaintiffs' evidence is that defendant 1 gave up possession on the expiry of the lease. If defendant 1 had actually given up possession, defendant 2 would have been expected to take back the patta of defendant 1 from him. But this patta Ex. A remained with defendant 1 and was produced by him in Court. The explanation given by defendant 2 is that defendant 1 told him that the patta was missing. The learned Subordinate Judge thinks that:

“the retention of the Patta (Ex. A) by defendant 1 was a clever device on his part in order to put pressure on defendant 2 to reduce the jama, and to dissuade any body else from taking thicca of the property in question against his wishes.”

17. If that is so, it does not seem likely that defendant 1 would quietly give up possession of the property. Considering the evidence and the circumstances, I am not convinced that the plaintiffs were put in possession of the property. Consequently, the plaintiffs cannot claim to have acquired a valid oral lease for one year.

18. It follows that the plaintiffs acquired no valid title under the lease said to have been granted by defendant 2.

19. It is argued that the plaintiffs' claim is supported by the lessor defendant 2, and defendant 1 being in possession without any title, the plaintiffs are entitled to recover possession from him. If the plaintiffs have not got any valid lease from defendant 2, the plaintiffs have got no title, and the mere fact that their claim is supported by defendant 2, does not confer on them any title. The defendant 1 may be in possession without any title, but the plaintiffs, in order that they may eject defendant 1, must prove their own title. In the view I take, it is unnecessary to deal with the second point raised by Mr. Nawal Kishore Prasad No. 1, namely, that defendant 1 was allowed to continue in possession, because he advanced Rs. 100 to defendant 2. However, as the point has been argued, it is better that I should record my finding. The evidence of defendant 1 is that at the time of the final wasilbaqi in Jeth 1347 defendant 2, demanded from him Rs. 100, more besides the amount due on account of the peshgi money, and that he paid the additional sum of Rs. 100. Admittedly, two sets of accounts were prepared at the time, one of which was Bigned by defendant 1 and kept by defendant 2, and the other signed by defendant 2, and kept by defendant 1. In the account Ex. B produced by defendant 1 there is an entry that Rs. 100 were paid besides Rs. 108-13-3 which was the amount due to defendant 2 on account of the peshgi money. In other words, the account Ex. B shows that the total amount paid to defendant 2 was Rs. 208-13-3. But the corresponding account Ex. 1 signed by defendant 1 and kept by defen-dant 2 and produced by the latter in Court shows that the amount paid was Rs. 108-13-3. The learned Subordinate Judge has found that in the account Ex. B Rs. 108-13-3 has been altered to Rs. 208-13-3. There is no satisfactory explanation offered by defendant 2 as to why in account Ex. 1 signed by him the amount entered was Rs. 108-13-3 and not Rs. 209-13-3. This fact by it self is sufficient to show that there must have been an interpolation in the entry in the account Ex. B which shows that the amount paid was Rs. 208-13-3. The learned Subordinate Judge has given other reasons also for disbelieving the evidence of defendant 1 that he paid Rs. 100 more to defendant 2. I have no reason to differ from the view taken by the Subordinate Judge.

20. In the result, I would allow the, appeal and dismiss the suit, but, in the circumstances, 1 would make no order as to costs.

21. It should be noted that the decree passed by the learned District Judge in the appeal that was filed in his Court should be set aside as being passed without jurisdiction.

Pande, J.:— I agree.

D.R/D.H

22. Appeal allowed.