Allahabad High Court
Malati Sharma vs Raj Kumar Yadav on 9 November, 2022
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on: 20.9.2022 Delivered on: 09.11.2022 Court No. - 18 "AFR" Case :- MATTERS UNDER ARTICLE 227 No. - 2691 of 2020 Petitioner :- Malati Sharma Respondent :- Raj Kumar Yadav Counsel for Petitioner :- Kiran Kumar Arora,Ram Akbal Upadhyay Counsel for Respondent :- Prakhar Tandon Connected with Case :- S.C.C. REVISION DEFECTIVE No. - 234 of 2014 Revisionist :- Malti Sharma Opposite Party :- Raj Kumar Yadav Counsel for Revisionist :- S.K.Upadhyay,Kiran Kumar Arora,R.A. Upadhayay Counsel for Opposite Party :- Pankaj Agarwal,Prakhar Tandon Hon'ble Ajit Kumar,J.
Heard Sri K.K.Arora, learned counsel for the petitioner and Sri Prakhar Tandon, learned counsel for the contesting respondents.
Both the matters arise out of same suit, therefore, are being heard and decided together by this common judgment.
The petitioner before this Court is tenant respondent in Small Causes Suit No. 193 of 2012, which came to be decreed dated 24.7.2019 for arrears of rent and ejectment.
The petitioner challenged the order of the Judge Small Causes before the Additional District Judge, Court No. 2 by instituting Small Causes Revision being No. 60 of 2019 which also came to be dismissed vide order dated 31st January, 2020 confirming the judgment of the Judge, Small Causes and hence this miscellaneous petition under Article 227 of the Constitution.
Present petitioner has also filed revision against the order passed by the Judge, Small Causes rejecting the application of the petitioner under Section 23 of Small Causes Courts Act, 1887.
The main arguments that were advanced by learned counsel for the petitioner can be summarized as under:
i. The petitioner having questioned the title of the land lord plaintiff qua property in question which is a residential house, the Judge Small Causes could not have decided the suit for arrears of rent and ejectment;
ii. While deciding point no. 1 the Judge, Small Causes, absolutely failed to take into account the pleadings raised in the written statement with regard to an agreement for sale between vendors of the plaintiff land-lord and the husband of the petitioner so as to appreciate her claim for acquiring possession by way of transfer and, therefore, her status as a tenant had changed entitling her to claim possessory rights in terms of Section 53-A of the Transfer of the Property Act, 1882; and iii. The petitioner having already instituted a suit to declare the sale deed executed in favour of the land lord plaintiff dated 13.06.2011 to be null and void, the benefit under Section 23 of the Small Causes Act, should have been given to him and his application was wrongly rejected.
In support of his arguments, learned counsel for the petitioner relied upon the judgment of Bombay High Court in the case of Dharmaji @ Baban Bajirao Shinde v. Jagannath Shankar Jadhav, 1994 LawSuit (Bom) 3 and that of this Court in the case of A R C Overseas Private Limited v. Bougainvillea Multiplex and Entertainment Centre Pvt. Ltd. And Another, 2007 LawSuit (All) 1562.
Per contra, the arguments advanced by learned counsel for the respondent land lord are:
(i). Petitioner having not deposited rent even as per second part of Rule 5 (Allahabad Amendment) of Order XV of Code of Civil Procedure, 1908 (CPC) his defence was rightly struck off and this finding having not been assailed either in the Small Causes Revision or before this Court, the suit deserved to be decreed and revision petition was also rightly dismissed and so now these petitions also deserve to be dismissed; and
(ii) land lord had acquired valid title by virtue of sale deed dated 13.6.2011, executed by admitted owners, namely, Deepak Kumar, Gopal Das, through his power of attorney and Indra Kumar, successor in interest of Tikam Chand and the instrument of sale very much contained recitals to the effect that contesting petitioner was a tenant only and was in arrears of rent, therefore, vendee would be entitled to maintain a suit for ejectment by determining tenancy with issuance of notice under Section 106 of the Transfer of Property Act, 1888, for recovery of arrears of rent and ejectment;
iii. Petitioner failed to lead any evidence by producing original agreement for sale which was claimed so as to set up any prima facie right to hold possession and photocopy of the agreement for sale being secondary evidence was not admissible in absence of any admission at the end of plaintiff in that regard;
iv. Neither registered power of attorney dated 14.7.1998 was admitted to the land lord respondents nor, sale deed admittedly executed by two owners of the property and the power of attorney holder of third owner dated 13.6.2011 admitted tenant respondent to be owner, nor did it contain any recital in respect of any notarized agreement for sale executed on 14.7.1998.
v. There was no reason to execute an unregistered agreement for sale and only notarized it whereas power of attorney executed in the same date dated 14.07.1998 was registered.
(vi). This Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution would not enter into findings of fact unless findings of fact are so perverse that if they are not arrested, it woud lead to miscarriage of justice .
Learned counsel for the respondent accordingly submitted that in the present case none of the findings could be held to be perverse nor, there was any such ground taken in this miscellaneous petition except the ground that the tenant petitioner having questioned the title, Court could not have tried the suit as Small Causes Suit treating the petitioner to be tenant and respondent as land lord.
Before coming to the legal arguments advanced before this Court, it is necessary to briefly state facts of the case so as to have better appreciation of the arguments advanced by learned counsel appearing for the respective parties.
The land lord respondent claimed to have acquired title of the premises in question which is a residential house, by registered sale deed executed in his favour on 13.06.2011 by Deepak Kumar, Indra Kumar, S/o Tikam Chand and Anup Mishra, the power of attorney holder of Gopal Das and the sale deed transferred the possession of entire premises in favour of Raj Kumar Yadav and carried recital very much to the effect that in the entire building, Smt. Malti Sharma was in occupation as a tenant with liability to pay rent @ Rs. 100/- per month to the vendors coupled with the house tax, water tax and sewer tax totalling to Rs. 944/- per month, however since 1995 despite demand she did not pay rent and so she ran into arrears of rent since 1st April, 1995 which she was liable to pay and, therefore, through the sale deed right to demand rent stood transferred to the vendee and also to get her evicted from the premises in the event rent was not paid, by bringing in a suit for recovery of arrears of rent and ejectment.
The land lord respondent did issue notice to the defendant petitioner demanding rent and arrears thereof and when the petitioner failed to pay rent in response to the notice, he instituted a suit for recovery of rent and ejectment .
It appears that while petitioner tenant filed her written statement questioning the right of the land lord respondent to demand rent, she also instituted a suit for declaring sale deed dated 13.6.2011 as null and void and also sought relief in the nature of permanent prohibitory injunction and it is in this background that an application under Section 23 of the Provincial Small Causes Act, 1887 came to be filed before the Judge, Small Causes which was dismissed against which revision was also dismissed and against that miscellaneous petition has been filed.
In the written statement plea was taken that owner of the property Tikamchand, Gopal Das, Deepak Kumar executed notarized agreement for sale on 14.09.1998 in favour of the petitioner and her husband and petitioner got them paid in advance certain amount as a consideration and then power of attorney was executed on 14.9.1998 in favour of Anuj Mishra by all three owners of the property to manage property in question and if decided to execute the sale, in that event sale was to be executed in favour of proposed purchaser. The sale deed was never executed as such whereas Tikam Chand's son, Indra Kumar, Deepak Kumar and one Anuj Mishra in the capacity of power of attorney holder of Gopal Das executed sale deed on 13.6.2011 in favour of Raj Kumar, the land lord respondent.
Points for determination that were formulated by Judge Small Causes included also a point for determination, as to whether defence of the tenant petitioner was liable to be struck off under Order XV Rule 5 for non payment of rent even after institution of suit.
All the issues were answered in favour of the land lord respondent and the suit was decreed.
In the case of A R C Overseas Private Limited (supra) cited by learned counsel for the petitioner, this Court had the occasion to examine the impact of an unregistered instrument, which otherwise was required to be registered under the Indian Registration Act, and whether it could have been relied upon otherwise for collateral purposes in Court of law proceedings. In the said case, the plaintiff appellant claimed to be in lawful occupation of a shop by virtue of a lease executed between the parties, however boards of the shop got removed by the lessor and the lessee was threatened from entering into the shop again. The suit for injunction brought by lessee was dismissed, against which appeal was preferred. The plaintiff was non suited on the ground that there was an arbitration clause under the lease agreement entered into between the parties.
The whole issue, therefore, in the said case was that the document being unregistered whether could not be used for any collateral purpose. It was in these circumstances, the Court proceeded to examine Section 107 of the Transfer of Property Act 1882 alongside Section 49 of the Registration Act, 1908 and vide paragraphs 12 and 13, the Court held thus:
"12. If we go through the later part of second paragraph of Section 107 of the Transfer of Property Act, as above, we shall be able to find that lease by oral agreement accompanied by delivery of possession need not be registered. Therefore, if the registration of the document is not available to the appellant but it was in the possession, the same is good enough for the purpose of creation of jural relationship between the parties. It is significant to note that the appellant has relied upon his initial possession. In paragraph 14 of the Judgment in Anthony v. K.C. Ittoop and Sons and Ors. , it was held that when it is admitted by both rides that the appellant was inducted into the possession of the building by the owner thereof and that the appellant was paying monthly rent or had agreed to pay rent in respect of the building, the legal character of the appellant's possession has to be attributed to a jural relationship between the parties. Such a jural relationship, on the fact-situation of the case, cannot be placed anything different from that of lessor and lessee falling within the purview of second paragraph of Section 107 of the Transfer of Property Act.
13. Secondly, last part of Section 49 of the Registration Act, as above, specifically speaks that "as evidence of any collateral transaction not required to be effected by registered instrument". Therefore, law is crystal clear to that extent. In Mattapalli Chelamayya (dead) by his Legal Representatives and Anr. v. Mattapalli Venkataratnam (dead) by his Legal Representatives and Anr. . the Supreme Court held that it should be noted that Section 49 does not say that the document cannot be received in evidence at all. All that it says the document cannot be received as evidence of any transaction affecting such property. If under the Evidence Act the document is receivable in evidence for a collateral purpose, Section 49 is no bar. This construction of the provision, which was accepted for a long time by the High Courts, has been duly recognized by the amending Act 21 of 1929, which added a proviso to the section. The proviso clearly empowers the Courts to admit any unregistered document as evidence of a collateral transaction not required to be registered. In Satish Chand Makhan and Ors. v. Govardhan Das Byas and Ors. , it was held that unregistered lease deed can be admitted in evidence for collateral purpose, invoking proviso to Section 49 of the Registration Act, as terms of lease are not a collateral purpose within its meaning. In Rai Chand Jain v. Miss Chandra Kanta Khosla , speaks that it is well settled that unregistered lease executed by both the parties can be looked into for collateral purposes. In Bondar Singh and Ors. v. Nihal Singh and Ors. , it was held that legal position is clear that Petition allowed document like the sale deed, even though not admissible in evidence, can be looked into for collateral purposes. The Court held that the collateral purpose is to be seen on the nature of the possession of the plaintiffs over the suit land. The sale deed in question at least shows that initial possession of the plaintiffs over the suit land was not illegal or unauthorized. Therefore, the undisputed initial possession herein is the guiding factor about validity of the document."
Upon bare reading of the aforesaid paragraphs of the judgment, the conclusion drawn would be that an unregistered document can be looked into for collateral purposes but the collateral purpose is to be seen in the nature of possession of plaintiff over the suit land.
Applying the above principles to the present case, petitioners predecessor in interest was admittedly tenant of the tenanted premises in question and came to change the nature of possessory rights from the tenant to proposed vendee under and agreement of sale which was never registered.
The judgment cited clearly holds that no title flows from an unregistered instrument, which in law is required to be registered. If that be so then status which the predecessor in interest of the petitioner had enjoyed and from whom petitioner succeeded that possessory rights, at the most would be of a tenant and to retain possession it is necessary to make payment of rent otherwise a tenant in default of payment of rent would deserve ejectment under the law. The person under an unregistered agreement for sale cannot even maintain a suit for its performance so as to acquire any possessory rights in law. So the nature of possession would only stand always to be a tenant qua the premises.
Looking to this nature of possession of a tenant, an unregistered agreement would only hold him to be not an unauthorized occupant and to that extent instrument will have an evidenciary value so as not to invoke provision for deemed vacancy under the Act No. 13 of 1972.
The Judgment of Bombay High Court in the case of Dharmaji @ Baban Bajirao Shinde (supra) cited by learned counsel for the petitioner also holds protection of possession to such an extent only. Hon' V.A.Mohta, J vide paragraphs 4 and 5 of the judgment held thus:
"4. Scrutiny of Sec. 53A would indicate that the necessary conditions for application of the provisions are : (1) There is a written contract signed by or on behalf of the transferor to transfer the immoveable property for consideration. (2) The terms of the contract pertaining to transfer are clearly discernible. (3) Transferee in part performance of the contract is either put in possession or is continued in possession and has done some act in furtherance of the contract. (4) Transferee has performed or is willing to perform his part of the contract. Wherever the above conditions are fulfilled the transferor or any person claiming under him is debarred from enforcing against the transferee or any person claiming under him any right in respect of the property in question even though the contract though required to be registered is not registered or where there is instrument of transfer, the transfer is not legally complete.
5. The section recognizes in a modified form English doctrine of equity of part performance, which is designed to relieve the rigour of law and provides a remedy when a transfer or an agreement to transfer falls short of legal requirements. It is meant to protect transferees who for appropriate consideration take possession, spend money and/or put in labour in improvements relying on the terms of the contract which for want of registration or any other legal requirement cannot be proved or cannot confer title on them. Thus the crux of the provision seems to be that mutual covenants are operative though title is not transferred as a result, the transferee though cannot seek to enforce his title can resist the attack on his rights under the contract, which would include right to retain possession. Often it is said that the right cannot be used as a sword and can be used only as a shield. If this right as a shield is available to him as a defendant, I do not see any justification for a view that it would be denied to him even if by force of circumstances he as a law abiding citizen is compelled to approach the Court as a plaintiff to use that shield. The transferee is entitled to resist any attempt on the part of the transferor to disturb transferee's lawful possession under the contract of sale and his position --either as a plaintiff or as a defendant --should make no difference. Contrary interpretation viz., the transferee can use the shield only as a defendant and not as a plaintiff, would defeat the very spirit of Section 53-A for it will be possible for an over powering transferor to forcibly dispossess the transferee even against the covenants in the contract and compel him to go to the Court as a plaintiff. As far as letter of law is concerned, there is nothing which militates against the above object oriented interpretation. "
But even this limited protection, I would further hold would otherwise be available to the petitioner if she proves it by leading a document in evidence either as primary evidence or secondary to be proved. In the present case only a notarized photo copy of alleged agreement was filed. The document led was not proved in the absence of original. It could not have been a case for raising any valid presumption in law either. A notarized photocopy was also not proved by getting public notary examined so as to claim that it was a photo copy of the original. In such view of the matter, therefore, neither benefit under Section 53-A of the Transfer of the Property Act, 1882 should have been given to the petitioner to protect possession in suit for recovery of arrears of rent and ejectment nor, the suit could be held to be not maintainable and required return of plaint under Section 23 of Provincial Small Cause Courts Act, 1887.
One must remember that the evidence, which is required to be appreciated by a court of law in a judicial proceeding, must be having evidenciary value. The pleadings if raised are not supported by lawfully admissible evidence then any statement of fact in a pleading would stood unworthy of consideration unless admitted to the rival side. So the argument that the Court did not appreciate the document of agreement for sale filed, in my cconsidered view is totally misplaced as no such document was filed in original. The document being unregistered one was required to be filed in original and was to be proved in accordance with law as well.
Yet another point which is to be considered in the matter is that petitioner defence stood struck off in the suit and yet petitioner did not take any plea in the entire memo of revision filed before the court below assailing the findings on the relevant issue no. 4. Since it is admission on the part of the petitioner that he was not paying rent for acquired possessory rights under an agreement for sale and her status changed from the tenant of the proposed purchaser and as such she was questioning the title of the respondent land lord, possibly for this very reason she did not contest the issue. Courts below have held that petitioner did continue in the capacity of tenant of the original land lord, who passed on title to the contesting respondent, and the sale deed contained recitals that petitioner was tenant and was in arrears of rent so land lord /respondent (subsequent purchasers) would be entitled to recover the rent and in the event of default, to claim ejectment. The suit was thus rightly filed and the payment having not been made towards rent by the petitioner , she deserved ejectment.
This Court in the case of Maya Devi and Another v. Vipin Kumar Kushwaha and Another, 2016 0 Supreme (All) 3530, has very clearly held that whether defendant admits in a suit for recovery of arrears of rent and ejectment himself to be tenant or owner even if the defendants questioning the title of land lord and his right to maintain suit, he is required to pay rent in compliance of the second part of Order XV of Rule 5 of the Code of Civil Procedure, 1908 dealing with relevant provisions of the Code of Civil Procedure, 1908. Vide paragraphs 5,6, 7,8 and 9 the Court has held thus:
"5. Order XV Rule 5 CPC applicable in the State of U.P. is in two parts. The first part deals with the deposit of amount admitted by the tenant to be due and the second part deals with the monthly amount due whether it is admitted or not by the tenant. In default in payment of either of the two amounts mentioned in the aforesaid two parts of Rule 5 of Order XV CPC, the court would be empowered to struck off the defence.
6. In Pradyuman Jee vs. Special/Additional District Judge, Ballia and others 2008 (71) ALR 892, it has been held that in case where the defendant denies the existence of landlord and tenant relationship, he may not be required to deposit the amount referred to in the first part of Rule 5 Order XV CPC, but he would still be required to deposit "monthly amount due" within a week from the date of its accrual throughout the continuation of the suit whether he admit the said amount to be due or not.
7. The aforesaid decision was followed by this Court in the case of Mukesh Singh and another vs. Ramesh Chand Solanki 2011 (89) ALR 655. His Lordship therein held that as the tenant therein had not complied with the second part of Rule 5 of Order XV CPC the defence was rightly struck off irrespective of the fact that he denied the relationship of landlord and tenant.
8. A similar view has also been expressed by another Judge of this Court in the case of Yusuful Haq @ Yusuf and others vs. Smt. Ghayyur Fatma and others 2012 (92) ALR 526.
9. In the aforesaid case it was held that where the defendant denies the existence of landlord and tenant relationship, he may not be required to deposit the amount admitted to be due at or before the first hearing of the suit but he would still be required to deposit the monthly amount due within a week from the date of its accrual throughout the continuation of the suit because such deposit has to be made in spite of the fact he admits any amount to be due or not.
So in my considered view, since admittedly petitioner has not paid rent even in compliance of second part of Order XV of Rule 5 of Code of Civil Procedure, 1908, the defence has rightly been struck off.
Having discussed the aforesaid fact and the law on the point, I find no error much less a substantial one in the findings either returned by the trial court or in revision and, therefore, I decline to interfere in the matter any exercise of my supervisory power under Article 227 of the Constitution.
On the point of jurisdiction of Judge, Small Causes to hear a summary suit where title of land lord has been questioned, this Court in the case of Suresh and Another v. Ram Bharosey Lal Gupta and Others 2014 0 Supreme (All) 1579 (2014 11 ADJ 327) considered the matter of return of plaint on the basis of unregistered instrument of sale of an immovable property. The Court examined first Section 54 of the Transfer of Property Act alongside Section 17 of the Indian Registration Act, 1968 vide paragraph 17 and then also examined Section 23 of the Provincial of Small Cause Courts Act, 1887 vide paragraph 18 and then referred to the judgment of Supreme Court in the case of Budhu Mal v Mahabir Prasad and Others, AIR 1988 SC 1772 vide paragraph 21 by reproducing the relevant paragraph of the Supreme Court's judgment. Learned Single Judge thereafter proceeded to refer the judgment of the Supreme Court in the case of Shamim Akhtar v. Iqbal Ahmed, AIR 2001 SC 1, wherein Supreme Court had held that Small Causes Court can incidently go into question of title in a suit between land lord and the tenant but of course, subject to the decision of a regular civil court in the civil suit, if filed. The Court also referred to the judgment in the case of Sheel Chand v. Iind A.D.J.,Jhansi, 2006 (1) ARC 359 and then finally held that question of rejection of plaint would arise when the court cannot decide the right of plaintiff and relief claimed by him for want of proof or disproof of title. In that case, land lord had set up a title on the basis of registered instrument whereas defendants were contesting the matter on the basis of unregistered instrument which the Court held to be ex facie illegal. Vide paragraph 17, 25, 26, the Court held thus:
"17. The transfer of immoveable property is governed by Act, 1882 and provides the way in which an immoveable property can be transferred. Section 54 says that transfer of immoveable can be made either by registered instrument or by delivery of property of a value less than Rs.100/-. No other mode is prescribed in the section. It is not stated therein that if a document is written so as to transfer immoveable property worth below Rs.100/-, it shall not require registration. On the contrary, if it is worth less than Rs.100/- and transfer is not proposed by an instrument reduced in writing, by mere delivery of property such transfer is permissible but where it is reduced in writing, it must be a registered instrument. Moreover, there is no exclusion with regard to requirement of registration of aforesaid document under Section 17 of Act, 1908. The documents, which are excluded from the requirement of registration, does not include transfer of immoveable property by sale irrespective of amount of consideration. Even otherwise, Section 17 of Act, 1908 nowhere provides, if a registration of a document is provided under any statute, that would not be necessary by virtue of Section 17 of Act, 1908. Section 17 of Registration Act nowhere has overriding effect as such over Section 54 therefore, both these provisions have to be read together. That being so, I am clearly fortified from the view taken by this Court in Budhi Ram (supra) that sale of property, if made through an instrument in writing then it shall not result in transfer of property, even if worth of property is less than Rs.100/-, since registration of document is necessary by virtue of Section 54 of Act, 1882. In such a case, I do not find any provision which may come to help a party who is staking his claim on the basis of an unregistered instrument. I am, therefore, clearly in agreement with the view taken by Court below that sale deed dated 22.12.1976, being an unregistered document, was a nullity and did not result in conferring any rights upon defendant-tenants i.e. petitioners with regard to suit property.
25. The above authorities clearly show that a mere dispute of title raised, would not oust the jurisdiction of Small Cause Court in proceeding to decide a suit, filed before it, and it is not bound to return the plaint on mere raising of such a dispute. Section 23 clearly says; only when the Court comes to the conclusion that it cannot decide the right of plaintiff and relief claimed by him since that would depend upon the proof or disproof of a title to immovable property, it may return the plaint and not otherwise.
26. In the present case plaintiff-landlord claim their rights founded on a registered instrument while the petitioner-defendants contested the matter relying on an unregistered document which was ex facie illegal. Hence there was no substantial dispute of title. It cannot be said that plaint ought to have been returned by Trial Court and the suit was incompetent. This question is also answered against petitioners. "
In the present case I also find that respondent land lord has acquired title by virtue of a registered sale deed dated 13.6.2011 whereas petitioner tenant was contesting the title of the land lord on the basis of an unregistered agreement for sale of which even original copy was not filed before the Court as an evidence to the pleadings raised .
In view of above, therefore, I do not find any error apparent on the face of record in the judgments and order passed by the trial court and, therefore, refuse to interfere in this revision petition. Both the petitions filed under Article 227 of the Constitution and revision filed under Section 25 of the Provincial of Small Cause Courts Act, 1887, being no. 234 of 2014 accordingly dismissed for want of merit and consigned to records.
Order Date :-09.11.2022 Sanjeev