Punjab-Haryana High Court
Udai Singh vs Dhara Singh on 13 August, 2013
Author: Paramjeet Singh
Bench: Paramjeet Singh
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Civil Revision No.978 of 1986
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Revision No.978 of 1986
Reserved on: 11.07.2013
Date of decision: 13.08.2013
Udai Singh
....Petitioner
Versus
Dhara Singh
....Respondent
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to see
the judgment ?
2) To be referred to the Reporters or not ?
3) Whether the judgment should be reported in the Digest ?
Present: - Ms. Alka Sarin, Advocate, for the petitioner.
Mr. R.S. Sihota, Sr. Advocate, with
Mr. B.R. Rana, Advocate, for the respondent.
*****
PARAMJEET SINGH, J.
Instant revision petition has been filed for quashing the judgment dated 21.7.1984 passed by learned Rent Controller, Palwal, and the judgment dated 8.1.1986 passed by the appellate authority, Faridabad, whereby the eviction petition filed by the petitioner has been dismissed and appeal therefrom has also been dismissed.
Brief facts of the case are that petitioner filed an application for eviction of the respondent alleging that Charan Singh, deceased father of the applicant, was the owner of the shop in dispute situated Singh Ravinder 2013.09.09 17:29 I attest to the accuracy and integrity of this document Chandigarh -2- Civil Revision No.978 of 1986 within the revenue limits of Palwal town. The said shop was given on rent to the respondent on monthly rent of Rs.200/- per month plus house tax for eleven months vide rent note dated 20.9.1978 by the deceased father of the petitioner. Charan Singh, father of the petitioner, expired and the petitioner stepped into the shoes of his father. It was also alleged that rent as well as the house tax has not been paid by the respondent from 20.2.1980 till filing the eviction petition.
On notice, respondent appeared and contested the case by filing reply. Respondent denied the relationship of landlord and tenant and submitted that rent note is false, fictitious and the same is not sustainable.
Learned Rent Controller framed following issues: -
"1. Whether the respondent is liable to be evicted from the shop in question on the grounds alleged? OPP
2. Whether no relationship of landlord and tenant exists between the parties? OPR
3. Relief."
Learned Rent Controller recorded a finding that rent note has not been proved on record. The signatures of the respondent were not got compared. Besides this, it is not admissible in evidence for want of registration. It is a compulsorily registrable document under Section 107 of the Transfer of Property Act. In view of these findings, learned Rent Controller dismissed the eviction application moved by the petitioner. The appeal preferred against the judgment of learned Rent Controller has Singh Ravinder 2013.09.09 17:29 I attest to the accuracy and integrity of this document Chandigarh -3- Civil Revision No.978 of 1986 also been dismissed by the appellate authority. Hence this revision petition.
I have heard learned counsel for the parties and perused the record.
Learned counsel for the petitioner vehemently contended that learned courts below have wrongly not taken into consideration the rent note Ex.P2 on the ground that it is not registered; as such inadmissible in evidence. Once the rent note is excluded then there is no relationship of landlord and tenant between the parties. The said finding is erroneous and not sustainable. Learned counsel for the petitioner further submitted that the rent note had been duly proved by examination of marginal witness.
Learned counsel for the petitioner further submitted that learned courts below have wrongly recorded the finding that petitioner is not the son of deceased Charan Singh. It is settled principle of law that once the person accepts the relationship of landlord and tenant, he cannot deny the same in the subsequent proceedings. There is complete misreading and non-reading of evidence on record.
Learned counsel for the respondent vehemently opposed the contentions raised by learned counsel for the petitioner and submitted that the findings recorded by learned courts below are sustainable in law and there is no error of law or facts. The finding of facts have been recorded by learned courts below. There is no mis-reading and non- Singh Ravinder 2013.09.09 17:29 I attest to the accuracy and integrity of this document Chandigarh -4- Civil Revision No.978 of 1986 reading of the evidence by learned courts below.
Learned counsel for the respondent relied upon the judgment of this Court in Pardeep Behal vs. Kanwaljit Kaur and others, 2012 (3) R.C.R.(Civil) 50 to contend that rent note is required to be registered and for non-registration, same is not admissible in evidence. Learned courts below have rightly discarded the rent note.
I have considered the rival contentions raised by learned counsel for the parties.
First question is with regard to the admissibility of unregistered rent note in evidence. From the perusal of instrument, it is clear that it is for eleven months. This fact has not been disputed by the parties.
Hon'ble Supreme Court had dealt with the identical issue in Satish Kumar vs. Zarif Ahmed and others, (1997) 3 Supreme Court Cases 679, wherein the Hon'ble Supreme Court observed as under: -
"The proviso is not applicable to the facts in this case and, therefore, it is not necessary to look into the exceptions engrafted vis-a-vis receipt of a documents comprising of three circumstances mentioned therein, namely, unregistered document used for therein, namely, unregistered document used for enforcement of specific performance under the Specific Relief Act or used as an evidence of part performance of the contract under Section 53-A of the TP Act or using evidence for collateral transactions. The combined effect of all the provisions is that an unregistered leases deed executed from month to month for a period not exceeding 11 months, Singh Ravinder 2013.09.09 17:29 I attest to the accuracy and integrity of this document Chandigarh -5- Civil Revision No.978 of 1986 though reduced to writing and possession is delivered thereunder to a tenant, is not a compulsorily registrable instrument and, therefore, the prohibition contained in Section 49 of the Registration Act is inapplicable. Therefore, the document is admissible in evidence to consider the effect of the immovable property contained therein or to receive as an evidence of any transaction vis-a-vis such property."
In this regard, reference can be made to Section 17(1)(d) of the Registration Act, 1908, which postulates as under: -
"17(1) the following documents shall be registered if the property to which they relate is situated in a district in which, and if they have been executed on or after the date on which, Act No.XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871 or the Indian Registration Act, 1877, or this Act, came or comes into force, namely-
* *
(d) lease of immovable property from year to year, or
for any term exceeding one year, or reserving an yearly rent;"
Word "instrument" has been defined in Section 2(14) of the Indian Stamp Act, 1899 postulating that: "Instrument includes every document by which any right or liability is, or purports to be created, transferred, limited, extended, extinguished or recorded."
Section 3 of the Transfer of Property Act, 1882 also defines "instrument" to mean a "non-testamentary instrument". Section 107 of the Transfer of Property Act regulates how lease is to be made. The first part thereof provides that a lease of immovable property from year to year, or for any term exceeding one year, or reserving an yearly rent, can Singh Ravinder 2013.09.09 17:29 I attest to the accuracy and integrity of this document Chandigarh -6- Civil Revision No.978 of 1986 be made only by a registered instrument. The second part thereof gives exception to the first part and provides that all other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.
In the light of above provisions, question arises whether a lease of immovable property from month to month or for eleven months is a compulsorily registrable document, though it was reduced to writing as an instrument defined under Section 2(14) of the Stamp Act. A conjoint reading of the first part of Section 107 read with Section 17(1)
(d) of the Registration Act, as extracted hereinabove, does indicate that a lease of immovable property from year to year, or for any term exceeding one year or reserving an yearly rent should be made only by a registered instrument and all other instruments, though reduced to writing and accompanied by delivery of possession thereunder, are not compulsorily registrable instruments.
Section 49 of the Registration Act prohibits receiving in evidence certain types of documents.
Section 49 of the Registration Act reads as under: -
"49. Effect of non-registration of document required to be registered. No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall -
(a) affect any immovable property comprised therein, or
* * *
(c) be received as evidence of any transaction affecting
Singh Ravinder
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Civil Revision No.978 of 1986
such property or conferring such power;
unless it has been registered:"
The combined effect of all the provisions, hereinbefore mentioned, is that a rent note executed for a period of eleven months, though reduced to wring and possession is delivered thereunder to a tenant, is not compulsorily registrable instrument. Therefore, provisions of Section 49 of the Registration Act will not apply. As the rent note Ex.P1 is only for eleven months it is not required to be registered and is admissible in evidence. So the finding of the learned courts below with regard to non-admissibility of rent note Ex.P2 for want of registration, is not sustainable in the eyes of law.
Now the question arises whether rent note has been proved on record by examining PW2 Rati Ram, who happened to be the marginal attesting witness of Ex.P2.
Findings of the learned Rent Controller as well as the learned appellate authority holding that rent note is not proved are not sustainable. Once the marginal witness appears and proves the rent note then the onus shifts upon the defendant to disprove the signatures/thumb impression. Perusal of the statement clearly indicates that PW2 Rati Ram was marginal witness of the rent note. He has categorically stated that Dhara Singh and Charan Singh had put their signatures on the rent note and the same was read over to the parties and he identified the signatures of Charan Singh and Dhara Singh over it. This categorically proves rent note Ex.P2. Thus, there is complete mis-reading and non- Singh Ravinder 2013.09.09 17:29 I attest to the accuracy and integrity of this document Chandigarh -8- Civil Revision No.978 of 1986 reading of the relevant evidence and the documents which are admissible in evidence.
In view of the above, present revision petition is allowed. Findings recorded by learned courts below are hereby set aside being not based on the misreading and non-reading of evidence on record and are not sustainable in the eyes of law. The findings have resulted in miscarriage of justice. Accordingly, the impugned orders passed by the learned courts below are set aside and the eviction application of the petitioner is allowed with costs which are assessed at Rs.5,000/-.
(Paramjeet Singh) Judge August 13, 2013 R.S. Singh Ravinder 2013.09.09 17:29 I attest to the accuracy and integrity of this document Chandigarh