JUDGMENT - R.A. JAHAGIRDAR, J.:---This petition raises a question of the jurisdiction of the Court of Small Causes at Bombay under section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, hereinafter referred to as "the Rent Act". The petitioners are a firm carrying on business at 94, Kazi Syed Street, Bombay- 400 003. The first respondent is a private limited company of which respondents Nos. 2 to 4 are the Directors. The petitioners had filed a suit in the Court of Small Causes at Bombay. That suit is R.A. Declaratory Suit No. 2298 of 1978. In the plaint filed in the said suit, the petitioners had given the history of a previous litigation between themselves and the respondents and had contended that as a result of the decree passed in the earlier suit, to which reference will be made shortly, they had become entitled to get from the respondents an aggregate carpet area of 1,375 square feet on the ground floor and 560 square feet carpet are on the mezzanine floor of a building which had been constructed at Kazi Syed Street at the same place where originally another building had stood. They also mentioned that the respondents had not given to them possession of the area mentioned above and had, on the other hand, given possession of an area which was much smaller. It was also their grievance that the area, possession of which had been given to them, was not according to the map which had been originally annexed to the decree that was passed. They, therefore, prayed for possession of the area as mentioned above and at a place which according to them had been marked in the place referred to above. 2. At this stage I must proceed to mention the previous litigation between the parties. R.A.S. Suit No. 1130/5838 of 1975 had been filed by the respondents against the petitioners and one Hasmukhlal Manilal. Hasmukhlal Manilal was defendant No. 1 while the petitioners were defendant No. 2 in that suit. It was the case of the respondents in that suit that defendant No. 1 was the original tenant and the petitioners had been illegally inducted in the building which was situated at 94, Kazi Syed Street, by the said Hasmukhlal Manilal. Hasmukhlal Manilal was defendant No. 1 while the petitioners were defendant No. 2 in that suit. It was the case of the respondents in that suit that defendant No. 1 was the original tenant and the petitioners had been illegally inducted in the building which was situated at 94, Kazi Syed Street, by the said Hasmukhlal Manilal. In paragraph 3 of the plaint it was mentioned that Hasmukhlal Manilal, in breach of the provisions contained in the Rent Act and also in breach of the terms of tenancy, unlawfully sublet to the petitioners the ground floor admeasuring 1, 375 square feet and mezzanine floor admeasuring 200 square feet forming part of the suit premises in that suit. It was also alleged in that suit that the first defendant was charging the petitioners a sum of Rs. 1,050 whereas the monthly rent of the suit premises was Rs. 509. Thus it was alleged that the first defendant in that suit was profiteering. Paragraph 4 of the plaint alleged that the respondents required the suit premises reasonably and bona fide for their own use and occupation and that they intended to "pull down the present building and re-erect a new building with a view partly to use the same for their own use and partly for letting it out." Possession of the premises was prayed for on these grounds. 3. The suit was filed on 24th of November, 1975 and within a short time thereafter, that is on 4th of December, 1975, the parties arrived at a compromise and consent terms were filed. The consent terms are in great details and will be the subject-matter of comments and discussion later in this judgment. Broadly speaking, it may be mentioned that the consent terms provided that the tenancy of Hasmukhlal Manilal, defendant No. 1 in that suit, stood terminated and he was to submit to a decree for eviction. It was also provided that if the petitioners vacated the suit premises, the respondents would demolish the existing structure and re-construct a new building as per the sanctioned plans and thereafter they would let out to the petitioners, who were stated to be the statutory tenants, premises in the new building as mentioned thereafter in the consent terms. It was also provided that if the petitioners vacated the suit premises, the respondents would demolish the existing structure and re-construct a new building as per the sanctioned plans and thereafter they would let out to the petitioners, who were stated to be the statutory tenants, premises in the new building as mentioned thereafter in the consent terms. The modality of working out the delivery of possession pursuant to the decree that would be passed as per the consent terms and the re-delivery of possession of an area in the newly constructed building was also mentioned in the consent terms. Paragraph 7 of the consent terms further stated that the respondents shall let and hand over possession to the petitioners as a monthly tenant an aggregate carpet area of 1,375 square feet on the ground floor and 560 square feet carpet area on the mezzanine floor as marked red on the plan annexed as Exhibit A thereto. It has also been mentioned that the premises shall have the situation, height, width, length etc., as mentioned on the said plan. Several undertaking relating to the delivery of possession of the premises were given in the consent terms. The learned trial Judge on 4th of December, 1975, passed the following order :--- "Decree against defendant No. 1 to vacate forthwith. Decree against defendants No. 2 to vacate by 10th December, 1975. Undertakings of the parties accepted. No order as to costs. Refund 1/2 institution fees to plaintiffs." 4. Subsequently, the respondents demolished the then existing building and constructed a multi-storied building. On 4th of April, 1978 a requisition was made on behalf of the petitioners upon the Advocates for the respondents calling the latter to advise their clients to hand over possessions of the premises according to the consent terms which had been arrived at in the aforesaid suit. Thereafter on 6th of April, 1978 possession of certain area, both on the ground floor and on the mezzanine floor, was given to the petitioners by the respondents. On 11th of April, 1978 the respondents Advocate wrote a letter to the Advocates for the petitioners recording that possession according to the consent terms had been given to the petitioners. This letter of 11th April, 1978 was in reply to another letter of 7th of the same month addressed by the Advocates for the petitioners to the respondents. On 11th of April, 1978 the respondents Advocate wrote a letter to the Advocates for the petitioners recording that possession according to the consent terms had been given to the petitioners. This letter of 11th April, 1978 was in reply to another letter of 7th of the same month addressed by the Advocates for the petitioners to the respondents. It is not necessary to deal with this correspondence any more apart from mentioning the fact that the Advocates for the respondents have recorded in the last paragraph the fact that the Advocates for the respondents have recorded in the last paragraph of this letter that the petitioners are the tenants of the premises of which possession has been handed over to them from 6th April, 1978. 5. It is the petitioners case that the area, possession of which has been handed over to them by the respondents, is 1,252 square feet on the ground floor and 640 square feet on the mezzanine floor. There is thus a shortage of 43 square feet area. Apart from this, the main grievance of the petitioners is that as per the plan originally annexed to the decree, they were entitled to an area abutting on the road, namely on the front portion of the new building, whereas the area, possession of which has been given to them in the rear portion, denying to them totally the advantage of the frontage. According to the petitioners, the area given to them is not as per the consent terms. They, therefore, proceeded to file the present suit, namely R.A. Declaratory Suit No. 2298 of 1978. I have already mentioned above about the prayers they have made in the said suit. I am not proceeding to mention any more details because ultimately only the question of jurisdiction, which has been decided against the petitioners by the Appellate Bench of the Court of Small Causes, has to be decided by me and only facts which are relevant to the determination of this question will be referred to. 6. The learned trial Judge by his judgment and order dated 30th of June, 1980 decreed the suit by declaring that the petitioners were entitled to the area on the ground floor as mentioned by them and directed that the respondents shall deliver possession of the entire ground floor of 1,375 square feet to the petitioners. 6. The learned trial Judge by his judgment and order dated 30th of June, 1980 decreed the suit by declaring that the petitioners were entitled to the area on the ground floor as mentioned by them and directed that the respondents shall deliver possession of the entire ground floor of 1,375 square feet to the petitioners. Against this decree, the respondents preferred an appeal, being Appeal No. 403 of 1980, which was heard and allowed by the Appellate Bench of the Court of Small Causes by its judgment and order dated 31st October, 1980, which is the subject-matter of challenge in this petition. While so allowing the appeal, the Appellate Bench held that the decree was not an executory decree but only embodied in an agreement for the creation of a lease. The Court of Small Causes at Bombay, therefore, did not have jurisdiction to entertain a suit for the specific performance of an agreement, though it had been entered into under consent terms which were embodied in a decree. As part of this finding, another finding was also necessarily given, namely that the decree which had been passed pursuant to the consent terms was not the one mentioned in section 13(1)(hh) of the Rent Act. If latter is the case, then the petitioners were not entitled to possession under the provisions of the Rent Act. If this is so, the Court mentioned in section 28 of the Rent Act has no jurisdiction to entertain the suit. 7. Mr. Gumaste, the learned Advocate appearing in support of this petition, has criticised the judgment of the Appellate Bench and has contended that the Appellate Bench of the Court of Small Causes has totally misdirected itself on the scope and the legal effect of the consent terms which were ultimately made a part of the decree passed by a Court under section 28 of the Rent Act. It was his contention that the consent terms provided two things: One is a decree to be passed under section 13(1)(hh) of the Rent Act and secondly the creation of a lease in respect of a new premises after the demolition of the than existing structure. If this is so, says Mr. It was his contention that the consent terms provided two things: One is a decree to be passed under section 13(1)(hh) of the Rent Act and secondly the creation of a lease in respect of a new premises after the demolition of the than existing structure. If this is so, says Mr. Gumaste, the relationship of landlord and tenant had already come into existence and on the basis of that relationship the petitioners were necessarily entitled to the area mentioned in the consent terms in the new building that ultimately came up. 8. These arguments of Mr. Gumaste have been repealed by Mr. Andhyarujina appearing for the respondents. He has contended that the consent terms do not create a lease but embodied only an agreement of lease and secondly, reading not only the consent terms along with the order passed by the Court in the earlier suit, but also looking to the plaint itself in that suit, it is impossible to arrive at a conclusion that the decree passed in the previous suit was one under section 13(1)(hh) of the Rent Act. I am not referring to the various stages of the arguments ably advanced by both the Advocates before me. I will proceed to examine by reference to the material before me, the contentions and also by reference to the authorities which have been cited. In the course of the judgment I may not be referring to a particular argument as having been advanced by a particular Counsel. From the context, however, it will be crystal clear as to who has advanced the argument. 9. It would be appropriate to proceed with the examination first of the contentions of Mr. Gumaste that the decree which was passed in the earlier suit was one under section 13(1)(hh) of the Rent Act, and therefore, after the construction of the new building the petitioners are entitled to the area possession of which was to be given to them under the consent terms. At this stage it is necessary for me to briefly mention one fact: There is an allegation by the petitioners that the map originally annexed to the decree passed pursuant to the consent terms did not contain the red lines which are now to be found on the same. At this stage it is necessary for me to briefly mention one fact: There is an allegation by the petitioners that the map originally annexed to the decree passed pursuant to the consent terms did not contain the red lines which are now to be found on the same. According to the petitioners, the map which was annexed to the decree showed that they would be given possession of the front portion of the building that would be constructed, but after the building was constructed they have been given the rear portion. To this the respondents have replied that what has been given to the petitioners is exactly the area which was originally shown in the map and the red lines always appeared on the map which was annexed to the consent decree. According to the respondents, there is no breach of any undertaking that was given by them in the consent terms. For the disposal of this petition, however, I will not examine the rival contentions of the parties in that regard. The question before me can be disposed of without reference to the controversy between the parties as to whether the map originally annexed to the consent decree contained the red lines or not. 10. Section 13(1)(hh) of the Rent Act provides that a landlord shall be entitled to recover possession of any premises if the Court is satisfied that the premises consist of not more than two floors and are reasonably and bona fide required by the landlord for the immediate purpose of demolishing them and such demolition is to be made for the purpose of erecting new building on the premises sought to be demolished. Before, however, a decree is passed on this ground, the provisions of sub-sections (3-A) and (3-B) of section 13 have to be satisfied. Sub-section (3-A) specifically mentions that no decree for eviction shall be passed on the ground specified in Clause (hh) of sub-section (1) unless the landlord produces at the time of the institution of the suit a certificate granted by the Tribunal under sub-section (3-B) and further gives an undertaking as mentioned in Clauses (a) to (c) of sub-section (3-A). Sub-section (3-A) specifically mentions that no decree for eviction shall be passed on the ground specified in Clause (hh) of sub-section (1) unless the landlord produces at the time of the institution of the suit a certificate granted by the Tribunal under sub-section (3-B) and further gives an undertaking as mentioned in Clauses (a) to (c) of sub-section (3-A). The undertaking to be given should be to the effect that the new building to be erected by the landlord shall contain not less than two times the number of residential tenements, and not less than two times the floor area, contained in the premises sought to be demolished and that the work of demolishing the premises shall be commenced by him not later than one month, and shall be completed not later than three months. The certificate by the Tribunal referred to in sub-section (3-A) is provided for in sub-section (3-B) of section 13. The provisions of sub-section (3-B) are to the effect that a Tribunal constituted by the State Government may grant a certificate after being satisfied that the plans and estimates for the new building have been properly prepared and that necessary funds for the purpose of the erection of the new building are available with the landlord. It is also mentioned that the Tribunal should also be satisfied about such other conditions as the State Government may by general and special order specify. Some of the conditions specified by the State Government in that regard are to be found in a notification bearing No. 906/48 dated 17th January, 1957 issued by the Government of Bombay. 11. From the summary of the relevant provisions of section 13 of the Rent Act which I have made above, it is clear that for a decree to be passed under section 13(1)(hh) the premises, of which the possession is sought by the landlord, must not consist of more than two floors and secondly they must be required for the purpose of erecting a new building. The decree on this ground, however, will not be passed by the Court unless the conditions specified in sub-section (3-A) are satisfied. The conditions prescribed in sub-section (3-A) cannot be satisfied unless a certificate is issued by the Tribunal as mentioned in sub-section (3-B). The decree on this ground, however, will not be passed by the Court unless the conditions specified in sub-section (3-A) are satisfied. The conditions prescribed in sub-section (3-A) cannot be satisfied unless a certificate is issued by the Tribunal as mentioned in sub-section (3-B). In other words, the certificate of a Tribunal issued under sub-section (3-B) and the undertakings as mentioned in sub-section (3-A) must precede the passing of a decree under section 13(1)(hh) of the Rent Act. Two decisions of this Court deal with the point of time at which the certificate granted by the Tribunal should be produced. Sub-section (3-A) itself mentions that the landlord must produce it at the time of the institution of the suit. In (Sharangdhar v. Sitaram)1, 1979 Maharashtra Law Journal, 237, Kanade, J., has taken the view that it would be sufficient to compliance with the directory provision relating to the time at which the certificate is to be produced if the same is produced before recording of the evidence is completed in the suit. In (Kondiram v. Bankat Swami Trust, Pandharpur)2, 1981 Maharashtra Law Journal, 921, Tulpule, J., has taken the same view relating to the time of the directory nature of the provisions relating to the production of the certificate. However, he has opined that the certificate should be produced and the undertaking referred to in sub-section (3-A) should be given before the parties go to evidence. In neither of the judgments any view has been taken, as indeed it could not have been taken, that a decree for possession under section 13(1)(hh) of the Rent Act could be passed by a Court in the absence of a certificate granted by the Tribunal and in the absence of the undertakings mentioned in sub-section (3-A) of section 13 of the Rent Act. On the other hand, though this Court has taken the view that the provision relating to the point of time at which the certificate is to be produced is directory, there is no scope for holding that the provision relating to the production of the certificate itself is directory and not mandatory. 12. Section 13(1)(hh) of the Rent Act provides for the demolition of the existing building for constructing a new building in its place. 12. Section 13(1)(hh) of the Rent Act provides for the demolition of the existing building for constructing a new building in its place. The Rent Act which is beneficial piece of legislation could not countenance a situation where the existing tenants are thrown out merely on the ground that a new building is to be constructed in place of the building in which they were residing, without providing for some alternative measures for their residence. The conditions subject to which a decree can be passed, therefore, must provide for such protective measures and they have been so provided in sub-sections (3-A) and (3-B) of section 13 of the Rent Act. Without the protection which is given in these provisions, the decree that may be passed by a Rent Act Court under section 13(1)(hh) will result in the permanent dishousing of the tenants in the building which would be demolished pursuant to that decree. The consequences of the absence of a certificate mentioned in sub-section (3-B) and of the undertakings to be given under sub-section (3-A) of section 13 would be disastrous for the tenants. Moreover, the Tribunal gives a certificate after being satisfied that a landlord after obtaining a decree under section 13(1)(hh) is in a position to proceed not only with the demolition of the building but with the reconstruction of a new building in its place. For this purpose the Tribunal will make enquires about the financial capacity of the landlord and into the question as to whether the plans and estimates of the new building have been properly prepared. In a given case the Tribunal may refuse to give a certificate. In the absence of such a certificate, the Court is debarred from passing a decree for eviction under section 13(1)(hh). In my opinion, therefore, the provisions, relating to the production of the certificate under sub-section (3-B) and the giving of the undertakings under sub-section (3-A) of section 13 are mandatory and are not directory. If the Court proceeds to pass a decree in the absence of such a certificate and such undertakings, it will be doing so in illegal exercise of its jurisdiction. 13. If the Court proceeds to pass a decree in the absence of such a certificate and such undertakings, it will be doing so in illegal exercise of its jurisdiction. 13. If a decree has been passed, as it has been passed in the instant case, without a reference to the certificate and the undertakings as mentioned in sub-sections (3-B) and (3-A) of section 13, one has to enquire as to whether the decree has been passed under section 13(1)(hh) and, therefore, it is a nullity or whether there was no decree at all under the said section. The consent terms no doubt mention in paragraph 4 that the respondents required the existing structure which was in a ruinous condition for the purpose of demolishing the same and re-constructing a new building. But looking to the consent terms as a whole, it is impossible to come to the conclusion that the decree which was passed pursuant to these consent terms was under section 13(1)(hh). In the first place, there was no mention at all of the production of the certificate issued by the Tribunal as required under sub-section (3-B) of section 13. The undertakings which have been given in the consent terms are not strictly in accordance with the requirements of sub-section (3-A) of section 13. The learned trial Judge who passed the decree as per the consent terms has no doubt accepted those undertakings. There is no mention whatsoever about the production of the certificate issued by the Tribunal. There is also no mention in the order passed by the learned trial Judge of the provision under which he was proceeding to pass the decree. There is definitely no indication that he has proceeded to pass the decree under section 13(1)(hh) of the Rent Act and after being satisfied with the conditions mentioned in the said provision along with the conditions mentioned in sub-sections (3-A) and (3-B) of section 13. In this state of material which is before me it would be hazardous to conclude that the decree which was passed was one under section 13(1)(hh) of the Rent Act. It has not been contended before me, as it was contended before the Court below, that the respondents obtained a certificate of the Tribunal as required by law. In this state of material which is before me it would be hazardous to conclude that the decree which was passed was one under section 13(1)(hh) of the Rent Act. It has not been contended before me, as it was contended before the Court below, that the respondents obtained a certificate of the Tribunal as required by law. The appeal Court below in fact wanted to get assistance for interpreting the decree and for that purpose it called for the record and proceedings of the earlier suit and found that in fact no certificate of the Tribunal has been produced in the trial in the earlier suit. It is therefore, clear to me that the decree passed by the Court in the earlier suit, which must be held to be a valid decree, was not a decree under section 13(1)(hh) of the Rent Act. 14. Mr. Gumaste, however, hastens to add that paragraph 7 of the consent terms makes provision for the waiving of the notice by the respondents which is to be given under section 17-B of the Rent Act. The said provision is in the following terms :--- "It is further agreed between the plaintiffs and the defendant No. 2 that the plaintiffs hereby waive the notice by the defendant No. 2 of his intention to occupy the tenement in the new building to be erected, as contemplated by section 17-B of the Bombay Rent Act". In my opinion, if the parties thought that a particular notice was necessary and it is to be waived, that itself will be determinative of the question as to whether the decree passed by the Court is under a particular provision of the Rent Act. If, as I have held above, no decree could be passed by a Court under section 13(1)(hh) unless before the passing of the decree the conditions mentioned in sub-sections (3-A) and (3-B) are satisfied, then it is impossible to uphold the submission that the decree passed in the earlier suit was one under section 13(1)(hh). On this point, I am in agreement with the opinion expressed by the Court below. 15. On this point, I am in agreement with the opinion expressed by the Court below. 15. The debate on the question as to whether the decree was one under section 13(1)(hh) of the Rent Act was necessitated before the Appellate Bench below partly because it was contended on behalf of the respondents that the consent decree provided only for an agreement for the creation of a lease and the present suit filed by the petitioners in fact and in law was for the enforcement of the agreement contained in the consent decree. It was, therefore, contended on their behalf that the Court of Small Causes exercising its jurisdiction under section 28 of the Rent Act could not entertain the said suit. In reply to this contention which had been urged before the appeal Court below, the petitioners had contended that the suit was not for the specific performance of the agreement contained in the consent terms, but it was for the purpose of enforcing the rights created in their favour under a statute by a decree passed under section 13(1)(hh) of the Rent Act. 16. Now I must proceed to examine the contention of the respondents that the suit as it is framed is for the purpose of the specific performance of an agreement of lease and, therefore, the Court of Small Causes has no jurisdiction to entertain the same. That the Court of Small Causes exercising its jurisdiction under section 28 of the Rent Act cannot entertain a suit for the specific performance of an agreement is beyond doubt. The point which I have now to deal with in fact branches off into three directions. In the first place there is a situation suggested by Mr. Gumaste that the consent terms themselves created a lease in favour of the petitioners in a building which was to be constructed after the demolition of the then existing building. In the alternative it was contended by him that there was a lease admitted and if necessary created by the consent terms themselves in favour of the petitioners in the then existing building and that lease survived the demolition of the building and the petitioners right to occupy an equivalent area in the new building was revived after the construction of the new building. Thirdly it was suggested that both the recitals in the consent terms and the conduct of the parties show that the parties proceeded on the basis that there was a right vested in the petitioners under a lease to occupy a space equivalent to the area mentioned in the consent decree in the new building and pursuant to this right the petitioners did occupy certain area and what was left was only the occupation of the remaining area. As against all these three submissions, Mr. Andhyarujina has insisted that no right was created by the consent terms which survived the passing of the decree and thereafter its execution. Since I have already held above that the decree did not create in favour of the petitioners a right which normally accrues to them under section 13(1)(hh) of the Rent Act, the petitioners can succeed only if one or the other of the arguments advanced by Mr. Gumaste is upheld. If, however, it is found that the consent decree did not in law invest the petitioners with one or the other right as suggested by Mr. Gumaste and it only created an agreement for creating a future lease, then naturally the Court of Small Causes would not have jurisdiction to entertain the suit filed by the petitioners. 17. Before proceeding to examine as to whether the consent terms created an agreement of lease, it would be appropriate to deal first with the arguments of Mr. Gumaste. According to Mr. Gumaste, the respondents have given an undertaking that the petitioners are a contractual tenant of the respondents from the date of the consent terms. Thereafter there is an undertaking to put the petitioners in possession of the areas specified therein in the new building that is to be constructed. Read together these two clauses of the consent terms necessarily suggest, says Mr. Gumaste, that a lease in present is created in a building, though the building was yet to be constructed. There can be a lease from month to month which can be created by an unregistered document and the consent terms are embodied in a document which though unregistered necessarily creates a right in present to occupy premises which are yet to come into existence. There is great difficulty in accepting this argument of Mr. Gumaste. There can be a lease from month to month which can be created by an unregistered document and the consent terms are embodied in a document which though unregistered necessarily creates a right in present to occupy premises which are yet to come into existence. There is great difficulty in accepting this argument of Mr. Gumaste. Section 105 of the Transfer of Property Act defines a lease of immovable property as "a transfer of a right to enjoy such property, made for a certain time, express or implied, or in pertetuity, in consideration of a price called premium to be rendered periodically or on specified occasions, to the transferor by the transferee, who accepts the transfer on such terms." Judicially noticed, this section has always meant that the transfer of the interest must be in a property which is existing at the time when the transfer is made. If a document purports to transfer a right to enjoy any property which is yet to come into existence, then it necessarily means an agreement to transfer and not a transfer in existing property. In Halsburys Laws of England, Second Edition, Volume 20 the exposition of law on this subject is to be found in paragraph 44 as follows :--- "An instrument is usually construed as a lease if it contains words of present demise; and although it is called an agreement, and contains a stipulation for the subsequent granting of a formal lease, it is construed as a lease if the essential terms are fixed; especially if possession is to be taken under it, and if the covenants which would be inserted in the lease are to be binding at once. It is construed an executory agreement, not withstanding that it contains words of present demise, if the provisions to be inserted in the lease are not finally ascertained, or if from other indications it appears that it was not intended to take effect as a lease; where for example, it is expressly provided that it shall not operate as a lease: or where it is in the form of an agreement to grant a lease, and there are none of the indications above referred to that it is operate as a lease; or where the lessor is not yet in a position to demise; or where certain things have to be done by the lessor before the lease is granted, such as the completion, or repair, or improvement of the premises, or by the lessee, such as the obtaining of sureties.................." (Emphasis provided). 18. There cannot be a demise in present of a building which is yet to be constructed. In (Tolaram Relumal v. State of Bombay)3, LVI Bom.L.R. 1206, the view expressed by Halsbury has been endorsed on page 1208 of the report. Reading the judgment as a whole in Tolarams case, it is clear that the Supreme Court laid it as a firm proposition of law that if a person executes a document agreeing to lease or leasing premised which are yet to be constructed, then that agreement must be treated as an executory agreement and not as a document creating a lease. The observations of the Privy Council in (Hemanta Kumari v. Midnapur Zamindari)4, A.I.R. 1919 Privy Council 79, also support the same view. In another case, namely (Vasant Sakharam v. Chabildas)5, LCCVI Bom.L.R. 584, Naik, J., while considering a case which contained somewhat analogous facts, has found the law to be as I have mentioned above. I am, therefore, unable to accept the contention urged on behalf of the petitioners that the consent terms, which contained a promise, indeed even an undertaking, on the part of the respondents to put the petitioners in possession of certain area in a building which was yet to be constructed, created a lease. 19. I am also unable to upheld the other contention of Mr. 19. I am also unable to upheld the other contention of Mr. Gumaste that the consent terms created a lease in the then existing building and after the building was demolished and a new building was constructed in its place, the right to occupy certain area in the new building revived in favour of the petitioners. I am proceeding on the basis that the consent terms did create a lease in favour of the petitioners, but the question is whether this lease which was created by the consent terms survived the decree that was passed and especially the execution of the said decree. The answer, in my opinion, must be in the negative because any lease which is created before a decree is passed must come to an end when the decree for possession is passed and, in particular, when the decree for possession is executed. I do not see how a proposition can be acceptable if it says that a relationship which is necessarily terminated by a decree survives the passing of such a decree. 20. In support of his contention, Mr. Gumaste relied upon some judgments, to which I must make a brief reference. First one of them is (Babubhai Narottamdas v. Venilal Dayabhai)6, 1975 All India Rent Control Journal, page 49. Before I take note of the opinion expressed in this judgment by a Single Judge of the Gujarat High Court, I am constrained to make an observation. It is hazardous to rely upon the judgments reported in the manner in which this Babubhais judgment is reported in this particular journal. The facts are not stated; the arguments are not mentioned and, indeed, the judgment itself does not find place in the report. It is more in the nature of a note rather than in the nature of a report of a judgment. One is also not sure as to whether the note has been prepared on the basis of a certified copy of the judgment. However, I will accept what has been stated in this judgment as an argument of Mr. Gumaste and accordingly decide the same. 21. One is also not sure as to whether the note has been prepared on the basis of a certified copy of the judgment. However, I will accept what has been stated in this judgment as an argument of Mr. Gumaste and accordingly decide the same. 21. The facts, to the extent to which they can be gathered from the report, disclose that there was an agreement between the landlord and the tenant under which the tenant agreed to deliver possession of the premises, provided that the landlord would hand over to the tenant the new building, after having the standard rent fixed. After the reconstruction of the building, the landlord offered a part of the premises on a rent decided by him without getting the standard rent fixed. The tenant filed a suit for specific performance of the agreement in the Rent Act Court which was resisted by the landlord on the contention that there was no relationship of landlord and tenant and, therefore, the Rent Act Court had no jurisdiction to entertain the suit. This contention was rejected by the learned Single Judge of the Gujarat High Court by holding that the relationship of landlord and tenant subsisted despite the agreement under which the premises were surrendered by the tenant to the landlord. It was observed in that case as follows :--- "But the words landlord and tenant occurring in this provision should be widely interpreted in cases of this type so as to include a would be landlord or tenant under an agreement to lease. This wider interpretation is in keeping with the definitions of these two terms given by section 5(3) and 5(11) of the Act. Further in order to see that the party who had entered into such an agreement is not left without any legal remedy, it is necessary to give a wider interpretation to the word let occurring in section 6(1) of the Act so as to include premises agreed to be left where the agreement sought to be enforced raised a claim or question under the Act." The facts of the Gujarat case are easily distinguishable. In the first place, there was an agreement between a landlord and the tenant and not between two persons who were going to be landlords and tenants after the agreement was to be enforced. In the first place, there was an agreement between a landlord and the tenant and not between two persons who were going to be landlords and tenants after the agreement was to be enforced. Secondly, when the tenants surrendered the premises, the contractual tenancy was still subsisting and had not come to an end. On these facts the learned Single Judge of the Gujarat High Court took the view which he has taken. I am unable to apply the ratio of that decision, if what has been mentioned in the report can be called a ratio, to the facts of the present case. Moreover, this view is clean contrary to the view expressed by a Division Bench of this Court in a judgment, to which I will make a reference later in this judgment. 22. The reliance placed by Mr. Gumaste on another judgment of a Division Bench of this Court in (Krishna Laxman v. Narsingrao)7, LXXV Bom.L.R. 29 is also misplaced. The facts of this case disclose that the petitioners before the High Court were the tenants of different small tenements in a house which was practically swept away by the flood waters resulting from the Panshet disaster at Pune. Ultimately, whatever had remained of the house was pulled down by the Municipal Corporation. Thereafter, the landlord-respondent commenced constructing a new building and apprehending that the landlord might induct new persons in the building that was to be constructed, the petitioners filed a suit in the Rent Act Court for a declaration that their tenancy had not been extinguished and for an injunction directing the landlord to deliver possession of the newly constructed tenements to them. The question was whether this suit would be entertainable under section 28 of the Rent Act. The Division Bench noticed "that in the present case at all stages including the arguments before us both the sides have repeatedly mentioned that the contractual tenancy of the petitioners had never been put to an end. This was the foundation of the judgment in that case and it was held that the petitioners before the Court had filed the suit in the correct forum. 23. This was the foundation of the judgment in that case and it was held that the petitioners before the Court had filed the suit in the correct forum. 23. Similarly, if the subject-matter of a lease is destroyed or substantially and permanently made unfit for the purpose for which it was let either by fire, tempest or flood or other similar cause, the lease is voidable at the option of the lessee. This is so provided in section 108(a) of the Transfer of Property Act. If, therefore, the lessee does not exercise the option during the lease, then his right to occupy the premises or any other building which may be constructed substantially at the same place at which the original building stood remains unimpaired. In the instant case, the lease which is said to have been created by the consent terms in the premises which existed before the decree, did not survive the execution of the decree at all, I have already dealt with the argument relating to the right created to occupy premises which are to come into existence and I have held that the said right did not amount to a lease. I am unable to see the relevance of another judgment on which Mr. Gumaste placed reliance, namely (Birendar v. General Marketing and Manufacturing Co.)8, A.I.R. 1976 Delhi 15. I am afraid, the question dealt with in that judgment has no parallel or analogy to the case before us and I find it unnecessary to discuss the same in detail. 24. The next argument of Mr. Gumaste is that the recitals in the consent terms created a lease which was acted upon by the parties concerned. He proceeded to point out that under the consent terms an area of 1,375 square feet on the ground floor and of 560 square feet on the mezzanine floor was to be given to the petitioners. Pursuant to this agreement an area which was somewhat smaller was in fact given to the petitioners. The petitioners entered into possession in the new building to the extent of the area offered to them. This meant that the parties acted upon the provisions made in the consent terms which necessarily created a lease. If this is so, says Mr. Pursuant to this agreement an area which was somewhat smaller was in fact given to the petitioners. The petitioners entered into possession in the new building to the extent of the area offered to them. This meant that the parties acted upon the provisions made in the consent terms which necessarily created a lease. If this is so, says Mr. Gumaste, the petitioners are entitled to ask for possession of the remaining area which was to be given to them under the terms which have been acted upon. There is an inherent fallacy in this argument. It proceeds on the basis that the consent terms necessarily created a lease. I have already rejected the contention to this effect. If there is an agreement to lease and pursuant to that agreement an area lesser than the one originally agreed upon has been given to the other side, the resultant situation is that the agreement has not been fully acted upon. Part of the agreement remains to be acted upon and the aggrieved party has a right to go to the Court asking for the specific performance of the balance of the agreement. If, therefore, pursuant to the consent terms the area originally agreed upon has not been given, the remedy open to the petitioners is to ask for the specific performance of the unperformed part of the agreement. In other words, the suit must necessarily mean a suit for the specific performance of that part of the agreement which the respondents are wrongfully refusing to honour. Some parts of the correspondence which I have mentioned above also shows that the respondents insisted at the earliest opportunity that a lease has been created only in respects of the area of which possession has been given to the petitioners and not in respect of any larger area. The third contention of Mr. Gumaste must also fail. 25. There is enough material in the consent terms, to which I have made repeated reference, which indicates that whether embodied therein was an agreement of lease and not a present demise in the premises. At this stage it would be profitable to refer to a judgment of a Division Bench of this Court, to which I have already made a reference above. At this stage it would be profitable to refer to a judgment of a Division Bench of this Court, to which I have already made a reference above. That judgment is in Civil Revision Application No. 616 of 1972 decided by Deshmukh, J., (as then was) and Sapre, J. The facts of that case were that there was a Trust which owned two buildings in Bombay. In one of the buildings, one Govindji, who was the petitioner before the High Court, was occupying one room as a tenant; another room had been let out to one Dalsukhbhai, who was the petitioner in another civil revision application, namely Civil Revision Application No. 617 of 1972 which was also heard along with Civil Revision Application No. 616 of 1972. The trustees wanted to construct a new building in the same compound in which the old building stood. To the construction of the new building there were certain objections by the Municipality. Therefore, the trustees filed two suits, against the two tenants and in the said suits consent terms were filed. Unfortunately, the consent terms filed in those suits were not before the Division Bench, but the parties proceeded on the basis that they provided that the trustees who were the landlords were to put the tenants in the new building when it would be constructed. This was treated as an agreement between the landlords and the tenants. On the trustees failing to honour the agreement, as well as the undertakings which they had given in the Court in the earlier suits, the tenants filed suits in the City Civil Court for the enforcement of the agreement. The City Civil Court held that it had no jurisdiction to entertain the suits because it thought that the agreement was between landlords and tenants the rights under which would be enforceable only by the Rent Act Court. When the tenants went to the Court of Small Causes, the said Court also held that it had no jurisdiction to entertain the suits because they were not suits covered by section 28 of the Rent Act. It was thus that the matter came up before the High Court . When the tenants went to the Court of Small Causes, the said Court also held that it had no jurisdiction to entertain the suits because they were not suits covered by section 28 of the Rent Act. It was thus that the matter came up before the High Court . After reviewing the facts and the extent law, the Division Bench held as follows :--- "Even then it does appear that when a new structure was in the offing what the trustees agreed was to admit the present plaintiffs as tenants into the new structure. Until that was done the present plaintiffs were not under obligation to vacate their old premises. In other words, here is an agreement to create a tenancy in respect of the new premises. To construe such an agreement to mean that a tenancy itself is created appears to be rather far-fetched. The new rooms may be a substitute for old rooms even though they were different rooms and a new property. By surrendering the old rooms the earlier contractual tenancy of the old building will come to an end. But so far as the new building is concerned, the tenants must be accepted and allowed to enter into possession of so that the new tenancy becomes a fact." 26. Proceeding further, another argument advanced on behalf of the tenants was also considered and rejected by the Division Bench. The ground for rejecting the said other argument was that as required by law, namely under section 107 of the Transfer of Property Act, "there is no registered document, the only mode allowed for creating a lease". It was painted out to me that this is not the correct position in law because the then Government of Bombay, by its Notification G.N.R.D. No. 434-A dated 17th January, 1910 as amended from time to time, has, in exercise of the powers conferred by the proviso to the second paragraph of section 107 of the Transfer of Property Act, notified that the leases of immoveable property, other than the leases from year to year or for any term exceeding one year or reserving an early rent, may be made by unregistered instrument. If the Division Bench judgment had been based only upon the ignorance of this notification, this argument of Mr. Gumaste could have been considered in greater depth. If the Division Bench judgment had been based only upon the ignorance of this notification, this argument of Mr. Gumaste could have been considered in greater depth. However, in the earlier part of the judgment it has been unmistakably held that the type of agreement which was before the Division Bench, which is similar to the one before me, did not create a lease but created only an agreement of lease which could be specifically enforced only in a Court of general jurisdiction. Considered from any point of view, therefore, it becomes inevitable to hold that the suit as it has been filed by the petitioners could not have been entertained by the Court of Small Causes under section 28 of the Rent Act. The judgment of the appeal Court below thus needs to be confirmed. Accordingly this petition must fail. Rule is discharged with no order as to costs. The record shall be sent down to the trial Court forthwith and the trial Court shall return the plaint to the petitioners fifteen days after the record is received by it. Rule discharged. -----