Judgment 1. Defendants 1 to 3, 7 and 8 of the defendants first party are the appellants. The plaintiff-respondent No. 1 filed a suit for declaration of his title to and recovery of possession over 8 kathas and 8 dhurs of land bearing survey plot No. 534. His case is that the defendants second party were the proprietors of the village in which the suit land lies to the extent of one anna six pies share and by private partition between the co-sharer landlords three plots of bakasht land, including the suit land, were allotted to their patti. On the 19th of June, 1935, they gave those three plots in simple mortgage to the plaintiffs father. In the year 1943, the father of the plaintiff instituted Mortgage Suit No. 213 of 1943 on the basis of the above mortgage bond and obtained a mortgage decree. That decree was put in execution and he purchased the three plots, including the plot in suit, at auction sale in the year 1951. After the death of his father the plaintiff obtained delivery of possession over these plots in March, 1953. The case of the plaintiff is that soon thereafter, on the 10th of May, 1953, he was obstructed in his possession by the defendants first party and hence he filed the suit on the 16th of January, 1954, for the reliefs stated above. The suit was contested by the appellants only, who pleaded that they had taken an oral settlement of the suit land on batai basis from the defendants second party in Baisakh, 1325 Fs., corresponding to 1918, and subsequently they wanted to construct a house on the land, and therefore, got a registered lease executed with respect to the suit land on the basis of nakdi rent on the 12th of November, 1942, in the "names of defendants 1 and 2, who were the kartas of their respective families. It was stated that the plaintiff, having full knowledge of the settlement, did not make them parties in the mortgage suit, although defendant No. 3, a Junior member of their family, was impleaded as a party thereto. It was further stated that even on defendant No. 3 the summons was not served at all. On these pleas it was contended that the mortgage decree and the auction sale in execution thereof were not binding on these defendants. 2. It was further stated that even on defendant No. 3 the summons was not served at all. On these pleas it was contended that the mortgage decree and the auction sale in execution thereof were not binding on these defendants. 2. Both the Courts below held that the story of batai settlement raised by the appellants was not established and that their lease was invalid under Section 107 of the Transfer of Property Act (hereinafter to be referred to as the Act), as well as under Sec. 65-A of the Act. They also held that the defendants are trespassers. Therefore, the suit of the plaintiff was decreed by the trial Court and that decree was affirmed by the Appellate Court. Hence, this appeal. 3. Mr. Shambhu Barmeshwar Prasad, appearing for the appellants, has raised three points, namely, (1) that the suit for possession by the plaintiff was not maintainable against the appellants and the only remedy of the plaintiff was to bring a fresh mortgage suit against them; (2) that even assuming that the suit in ejectment was maintainable, the plaintiff, not having proved his possession or the possession of his predecessors within 12 years of the suit, the suit should have been dismissed; and (3) that the appellants, at any rate, could use their 3ossession as a shield by way of part performance under Sec. 53-A of the Act. 4. So far as the first point is concerned, it has been contended on behalf of the appellants that, even though the lease of the appellants was invalid, they, seeing in possession on the basis of such invalid lease, were interested in the redemption of the mortgage and, they not having been made parties in the mortgage suit, the auction purchase in pursuance of the mortgage decree is not binding on them. In support of this contention, learned Counsel has placed reliance on the case of Kamakshya Narain Singh V/s. Ramzan Ali, ILR 23 Pat 648 : (AIR 1945 Pat 106). In that case it was held that a lessee from the mortgagor, though his lease may not be valid and binding against the mortgagee, is still a person having an interest in the mortgaged property witihn the meaning of Section 91 of the Act, because his lease is certainly good as against the mortgagor. In that case it was held that a lessee from the mortgagor, though his lease may not be valid and binding against the mortgagee, is still a person having an interest in the mortgaged property witihn the meaning of Section 91 of the Act, because his lease is certainly good as against the mortgagor. In that case, however, the lease by the mortgagor was executed in July, 1928, prior to the amendment of the Transfer of Property Act in the year 1929, on receiving salami. Prior to this amendment, there was no provision in the Act for the mortgagors power to grant a lease of the mortgaged property. But on various authorities of different High Courts the law stood to be that if in the course of proper management of the mortgaged property the mortgagor grants a lease of the mortgaged property that will be binding on the mortgagee. After the amendment of 1929, a new section, being Sec.15-A, was introduced in the Act, according to which, so far as is relevant for the purposes of the present appeal, a mortgagor, while lawfully in possession of the mortgaged property, could have power to make leases thereof so as to be binding on the mortgagee if such lease has been made in the ordinary course of management of the property concerned and in accordance with any local law, custom or usage, provided that no premium shall have been paid or promised and no rent could be payable in advance. This section has not been made retrospective, and, therefore, did not apply to the case reported in ILR 23 Pat 648 : (AIR 1945 Pat 106). In that case there was a finding that the lease was not granted in the ordinary course of management and had the effect of impairing the mortgaged security. On that finding, it was held that the lease was invalid and not binding on the mortgagee. Since, however, the mortgagor had received salami for granting the lease, it was held to be effective as against the mortgagor in order to bring the lessee within the meaning of persons having a right of redemption under Section 91 of the Act. It was, therefore, held in that case that the said lessee, even under an invalid lease, was a necessary party to the mortgage suit. It was, therefore, held in that case that the said lessee, even under an invalid lease, was a necessary party to the mortgage suit. That case has no application to the facts of the present case, especially in view of the provision of Section 15-A of the Act. Be that as it may, in the present case the lease has been held to be invalid, not only on the ground of the non-compliance of Sec.15-A of the Act, but also in view of Sec.107 of the Act. 5. Sec.107 of the Act states that a lease of immoveable 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 and where a lease of immoveable property is made by a registered instrument, such instrument or, where there are mere instruments than one, each such instrument shall be executed by both the lessor and the lessee. It has been held by a Full Bench of this Court, in Ramkrishna Jha V/s. Jainandan Jha, AIR 1935 Pat 291 that where the lessee executes a registered qabuliyat in favour of the lessor and the lessor accepts it by means of an unregistered amalnamah, no valid leass is constituted as the qabuliyat executed by the tenant is not a lease nor can the acceptance of the lessor be proved either by the amalnamah or by oral evidence. It was pointed in an unreported decision of this Court in Bhagwat Ram V/s. Chhedilal, (Second Appeal No. 23 of 1950, D-/ 11-54954 (AIR 1955 N. U- C. (Pat) 2481) that, in view of the non-compliance of the provisions of Sec.107 of the. Act, the lease is invalid and such a lease could not confer valid title to the lessee. In the present case, it is an admitted position that the provisions of Sec.107 were not complied with. The lease is, therefore, invalid conferring no title on the appellants. That being so, they were not interested in the redemption of the mortgage and, as such, were not necessary parties to the mortgage suit. The first contention, therefore, fails. 6. The second question raised on behalf of the appellants does not arise for determination on the own case of the appellants. Their story that they were in possession of the suit land from 1325 Fs. The first contention, therefore, fails. 6. The second question raised on behalf of the appellants does not arise for determination on the own case of the appellants. Their story that they were in possession of the suit land from 1325 Fs. as bataidar has not been accepted by the Courts below and it has been specifically held that they were not in possession before 1942 when the registered lease in question was executed. On the case that is going to be made- out on their behalf that they must be held to have been put in possession by the landlords after the execution of the lease, it must be assumed that prior to the lease the landlords must have been in possession even according to the appellants. The suit, having been brought within 12 years of that date, is therefore, not barred by limitation and it cannot be held that the plaintiff or his prodecessors-in-interest were not in possession within 12 years of the suit. 7. The third point has to be rejected on the simple ground that the doctrine of part performance under Sec. 53-A of the Act was not pleaded in the written statement and no issue was raised on that point. In order to apply the principle of part performance, as envisaged by Sec. 53-A of the Act, it has to be proved that the transferee had, in part performance of the contract, taken possession of the property or any part thereof or the transferee, being already in possession, continued in possession in part performance of the contract and had done some act in furtherance of the contract. In the present case there is no averment in the pleadings that the appellants took possession of the property or any portion thereof in part performance of the lease. On the finding of the Courts below that they were never in possession before the granting of the lease, the question of their continuing in possession does not arise. There is no evidence to prove that they had done some act in furtherance of the contract. They filed a receipt to show payment of rent soon after the lease was executed, but that receipt has been held to be not genuine. In that view of the matter, it is not permissible for the appellants to raise a question of part performance for the first time in second appeal. 8. They filed a receipt to show payment of rent soon after the lease was executed, but that receipt has been held to be not genuine. In that view of the matter, it is not permissible for the appellants to raise a question of part performance for the first time in second appeal. 8. The result, therefore, is that there is no merit in this appeal which is, accordingly dismissed; but, in the circumstances of the case, there will be no order as to costs.