Madras High Court
N.A.K.Gopalakrishnaraja vs P.Elangovan on 23 September, 2014
Author: V.M.Velumani
Bench: V.M.Velumani
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :23.09.2014 CORAM THE HONOURABLE MS.JUSTICE V.M.VELUMANI C.R.P.(NPD)(MD)No.564 of 2006 N.A.K.Gopalakrishnaraja ... Petitioner Vs. P.Elangovan ... Respondent Petition filed under Article 227 of the Constitution of India, praying to allow the Civil Revision Petition filed by the petitioner by setting aside the order passed in R.C.O.P.4/2000, dated 24.07.2003 on the file of the Rent Controller (District Munsif) Periyakulam and confirmed in order dated 16.03.2006 made in R.C.A.12/2003 on the file of the Subordinate Judge (Rent Controller Appellate Authority), Periyakulam and to Order Eviction directing the Respondent to surrender vacant possession of the premises and thus render justice. For Petitioner : Ms.Rita Chandrasekar for M/s.Aiyar & Dolia For Respondent : Mr.Veera Kathiravan Date of Reservation : 23.07.2014 Date of Pronouncement : 23.09.2014 :ORDER
The petitioner, who is the landlord, has filed R.C.O.P.No.4 of 2000 for evicting the tenant/respondent from the petition premises on the ground of own occupation and demolition and reconstruction.
2.The petitioner claimed that the land and building described in the schedule to the petition was let to the father of the respondent for running a hotel business. After the death of the respondent's father, the respondent was carrying on the hotel business. The annual rent is Rs.5400/-. The lease agreement entered into by the respondent?s father expired on 31.12.1997. The respondent did not pay any annual rent from the years 1998, 1999 and 2000 amounting to Rs.16,200/-. The respondent denied the title of the petitioner in respect of the superstructure. The petitioner requires the petition premises to demolish immediately and reconstruct the same. The petitioner has sufficient means to demolish and to reconstruct the new building. The petitioner was given a necessary undertaking as per the Act.
3.The respondent denied the title of the petitioner in respect of the superstructure. According to the respondent, his father took only the land in the petition premises for rent and he put up the superstructure to run the hotel business. The respondent filed O.S.No.205 of 1998 for the relief under City Tenants Protection Act. There is no arrears of rent. The building is not in a dilapidated condition necessitating demolition.
4.On the pleadings, the petitioner examined his employee as P.W.1 and marked exhibits A1 to A27. The respondent examined himself as R.W.1 and marked exhibits B1 to B3.
5.The learned Rent Controller considering the pleadings and arguments of the counsel for the petitioner and the respondent, dismissed the R.C.O.P.No.4 of 2000. The petitioner filed R.C.A.No.12 of 2003 on the file of the Subordinate Judge (Appellate Authority), Periyakulam, who by the order, dated 16.03.2006 dismissed the appeal confirming the order of the learned Rent Controller.
6.Aggrieved by the orders of both the courts below, the present Civil Revision Petition is filed.
7.Heard the learned counsel for the petitioner and the learned counsel for the respondent.
8.The learned counsel for the petitioner vehemently argued that both the Rent Controller and the Appellate Authority failed to consider the exhibits filed and relied on by the petitioner. According to the learned counsel for the petitioner, the rent receipts marked as Exs.A1 to A26 clearly show that lease is for both the land and building and the respondent paid rent for both land and building. The learned counsel for the petitioner vehemently argued that both the Rent Controller and Appellate Authority rejected Ex.A27 lease deed is contrary to law and well settled judicial pronouncements. The learned counsel for the petitioner contended that even though Ex.A27 must be compulsorily registered, an unregistered lease deed can be marked and relied on for collateral purpose. The learned counsel referred the order dated 08.07.2002 made in I.A.No.10 of 2001 in R.C.O.P.No.4 of 2000. By the said order, the learned Rent Controller held that the nature of petition property is only collateral issue and allowed marking of unregistered lease deed and permitted the petitioner to rely on the said document. The said unregistered lease deed marked as Ex.A27. But in the final order passed in R.C.O.P.No.4 of 2000 the very same Rent Controller, rejected the Ex.A27 on the ground that the same was not registered in compliance of the provisions of the Registration Act and there is no difference in the dates mentioned in Ex.A27. The rejection of Ex.A27 is contrary to law. The Appellate Authority also on erroneous consideration of the pleadings and law, rejected Ex.A27. The learned counsel for the petitioner contended that both the Courts below ought to have held that Ex.A27 could be relied on for collateral purpose and ought to have allowed the claim of the petitioner and ordered eviction of respondent.
9.The learned counsel for the petitioner relied on the following judgments.
(i) The Hon'ble Supreme Court in Appeal (Civil) No.7579 of 1999 (Bondar Singh and others vs. Nihal Singh and others in paragraph 5 held as follows:
"The only defence set up against said document is that it is unstamped and unregistered and therefore ti cannot convey title to the land in favour of plaintiffs. Under the law a sale deed is required to be properly stamped and registered before it can convey title to the vendee. However, legal position is clear law that a document like the sale deed in the present case, even though not admissible in evidence, can be looked into for collateral purposes. In the present case the collateral purpose to be seen is the nature of possession of the plaintiffs over the suit land."
(ii) This Court in the judgment in S.A.No.1640 of 1996 (Durai @ Subrayan vs. Anandan) dated 25.11.2009, at paragraph 11, extracted the judgment of the Apex Court reported in (2008 (5) CTC 260) K.B.Shah and sons Private Ltd., v. Development Consultant Ltd., which reads as follows:
"11.The learned counsel appearing for the plaintiff, at this state, referred to the decision of the Honourable Supreme Court in K.B.SHAH AND SONS PRIVATE LIMITED V. DEVELOPMENT CONSULTANT LIMITED (2008 (5)CTC 260) wherein the properties governing the admissibility of an unregistered document has been adumbrated as follows:- "From the principles laid down in the various decisions of this Court and the High Courts, as referred to hereinabove, it is evident that:
1.A document required to be registered is not admissible into evidence under Section 49 of the Registration Act.
2.Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to Section 49 of the Registration Act.
3.A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4.A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc., any right, title or interest in immovable property of the value of one hundred rupees and upwards.
5.If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.
16.Reverting back to the ratio laid down by the Supreme Court in BONDAR SING V. NIHAL SING (AIR 2003 SC 1905), the court finds that an unstamped and unregistered sale deed can very well be looked into, even if the same was not admissible in evidence, to establish the nature of possession of the party concerned over the suit property."
10.The learned counsel for the petitioner further argued that the Courts below erred in holding that the petitioner failed to prove that the petition premises is in a dilapidated condition so as to demolish and reconstruction. The learned counsel for the petitioner argued that for a building to be demolished, it need not be in a dilapidated condition. Age of the building is also not a criteria but the condition of the building and bona fides of the landlord are only criteria for ordering relief of demolition and reconstruction. In the present case, the petitioner has proved the condition of the building and bona fides of the petitioner for demolition and reconstruction. The learned counsel for the petitioner relied on the order of this Court dated 04.08.2010 passed in C.R.P.(NPD) No.2393 of 2010 (Ruthramani v. Deenadhayalu Pillai) wherein the decision of the Apex Court is extracted [2006 (2) CTC 615 para 7]. The relevant portion reads as follows:
"7.On the question of demolition and reconstruction of the premises in question, much was sought o be made out of the fact that the condition of the building had not been ascertained an, while according to the tenants it was not in a dilapidated condition, according to the landlord it was in a dilapidated condition. We do not attach much importance to the question as to whether the building was or was not in a dilapidated condition because Section 14(1)(b) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 (for short 'the Act') contemplates a building which is bona fide required by the landlord for the immediate purpose of demolishing it, and such demolition is to be made for the purpose of erecting a new building on the site of the building sought to be demolished. Therefore, Section 14(1)(b) does not contemplate that the building sought to be demolished must necessarily be in a dilapidated condition. Even if a building is not in a dilapidated condition, it may be demolished for the purpose of erecting a new building on the same site.
11.In the instance case, we find that the property owned by the landlord, whatever may have been its value in the past, has acquired commercial value and therefore, the landlord wishes to demolish the old single storey structure and to construct a multi-storied building, which may fetch him higher rent, apart from serving his own needs."
11.On the other hand, the learned counsel for the respondent argued that the respondent's father took only the land on rent and put up superstructure. The exhibits R1 and R2 clearly show that the land was let out and rent was paid only for the land. In Exs.A1 to A26, it has not been mentioned consistently that rent was for land and building.
12.The learned counsel for the respondent argued that Ex.A27 cannot be relied on as the same is unregistered one. The purpose for which the petitioner wants to rely on is not a collateral purpose. The petitioner wants to rely on Ex.27 to prove that both land and building was let out to the respondent. This is the main issue to be decided in R.C.O.P and R.C.A.
13.The learned counsel for the respondent relied on the judgments:
(i) (2009) 2 MLJ 526 (SC) (K.B.Saha and Sons Pvt. Ltd. v.
Development Consultant Ltd.). Paragraph 21 of the judgment was extracted in the judgment of this Court dated 25.11.2009 made in S.A.No.1640 of 1995 and referred to by me in para 9 of this order. Paragraphs 17 and 18 reads as follows:
"17. As we have already noted that under the proviso to Section 49 of the Registration Act, an unregistered document can also be admitted into evidence for a collateral fact/collateral purpose, let us now look at the meaning of "collateral purpose" and then ascertain whether Clause 9 of the lease agreement can be looked into for such collateral purpose. In Haran Chandra Chakrvarti Vs. Kaliprasanna Sarkar [AIR 1932 Cal 83(2)], it was held that the terms of a compulsorily registrable instrument are nothing less than a transaction affecting the property comprised in it. It was also held that to use such an instrument for the purpose of proving such a term would not be using it for a collateral purpose and that the question as to who is the tenant and on what terms he has been created a tenant are not collateral facts but they are important terms of the contract of tenancy, which cannot be proved by admission of an unregistered lease-deed into evidence.
18. The High Court in the impugned Judgment relied on a decision of the Allahabad High Court in the case of Ratan Lal & ors. Vs. Harisankar & Ors. [AIR 1980 Allahabad 180] to hold that since the appellant wanted to extinguish the right of the respondent with the help of the unregistered tenancy, the same was not a collateral purpose. In Ratan lal's case [supra], while discussing the meaning of the term "Collateral Purpose", the High Court had observed as follows :-
"The second contention was that the partition deed, even if it was not registered could certainly be looked into for a collateral purpose, but the collateral purpose has a limited scope and meaning. It cannot be used for the purpose of saying that the deed created or declared or assigned or limited or extinguish the right to immovable property ..........term collateral purpose would not permit the party to establish any of these acts from the deed."
(ii) The Patna High Court in Sachindra Mohan Ghose v. Ramjash (AIR 1932 Patna 97) held as follows:
"Now, I am not prepared to hold that to use the document for th purpose of proving an important clause in the lease would be using it for a collateral purpose."
14.The learned counsel for the respondent further argued that when the land has been let out, the provisions of Tamil Nadu Building (Lease and Rent Control) Act, 1960 is not applicable and therefore, R.C.O.P. is not maintainable.
15.The learned counsel relied on the decision in Abdul Rasheed v. Muslim Mahadavia Jamath Committee [2012 (3) MWN (Civil) 517]. The relevant portion is extracted as under:
"A mere poring over and perusal of those decisions would unambiguously and unequivocally, highlight and spotlight the fact that if at all any structure is leased out by the Landlord for the enjoyment of the Tenant, then automatically the provisions of the Tamil Nadu Building (Lease and Rent Control) Act would be applicable, if the said structure comes within the territorial jurisdiction of the Rent Controller."
"14.Here, not even such a structure was leased out by the Landlord in favour of the Tenants, wherefore, the decisions of both the Courts below are nothing short of perversity and illegality, warranting interference in Revision and certainly pronouncements of both the Courts below should be set aside and ultimately, the RCOP has to be dismissed. Accordingly, it is dismissed."
Therefore, the Courts below has rightly dismissed RCOP and RCA.
16.I have carefully perused the materials on record and the judgments relied on by the learned counsel appearing on behalf of the parties and considered the arguments of the learned counsel for the petitioner and the respondent.
17.The first and foremost issue to be decided is whether the petitioner let out the land and building to the respondent's father or the petitioner let out only vacant land and respondent's father put up superstructure to run the hotel business. The petitioner examined his employee as P.W.1 who was not an employee of the petitioner when he let out the property to the respondent's father. P.W.1 did not know whether only vacant land was let out or land with building was let out. Similarly, the respondent who examined himself as R.W.1 also did not know about this fact, as the property initially was let out only to his father. The oral evidence of P.W.1 and R.W.1 do not throw any light on this issue. The petitioner who personally knows the nature of the property let out to the respondent's father has chosen not to give evidence for the reasons best known to him. The best available evidence is not before the Courts.
18.Therefore, this issue has to be decided based on the exhibits marked in R.C.O.P. On behalf of the petitioner, 26 receipts from 10.02.1978 to 24.02.1997 were marked as exhibits A1 to A26. In some of these receipts, it has been mentioned as rent for shop, in some receipts rent for hotel and in some receipts annual rent. No receipt prior to 1978 was produced.
19.On the other hand, the respondent marked Ex.B1 dated 20.02.1975 and Ex.B2 dated 02.03.1974. In both these receipts, it has been mentioned as "land rent for Vijalakshmi Hotel". Therefore, the contention of the respondent that only vacant land was let out to the respondent's father is acceptable one.
20.The learned counsel for the petitioner vehemently argued that Courts below erred in rejecting Ex.A7. The contention of the learned counsel for the petitioner is the said exhibit can be relied on for collateral purposes. From the judgment relied on by the counsel for the petitioner and respondent, it is seen that a document required to be registered is not admissible into evidence under Section 49 of the Registration Act. An unregistered document can be used as an evidence on collateral purposes as prescribed in the proviso to Section 49 of the Registration Act. To use an unregistered document for collateral purpose, the collateral transaction must be independent or divisible from the transaction to effect which law required registration. Any transaction creating any right, title or interest in immovable property of the value Rs.100/- and upwards cannot be termed as collateral purpose. In the instance case, Ex.A27 is pressed into service to prove that property let out to the respondent is land and building and not vacant land. As per Ex.A27, an interest in immovable property is created to the value more than Rs.100/-. Further, the issue whether the property let out is land and building or only vacant land is the main issue which goes to the root of the matter. This transaction cannot be held as collateral purpose. For the above reasons, I hold that the contention of the learned counsel for the petitioner that Ex.A27 is put into service for collateral purpose is untenable. The Courts below have rightly rejected Ex.A27. There is no reason warranting interference of this Court.
21.On consideration of evidence and materials on record, I hold that the petitioner has failed to prove the property let out to the respondent?s father is the land and building. As the petitioner failed to prove that the building also was let out to the respondent?s father, the provisions of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, are not applicable and the petitioner cannot invoke the said provisions to evict the respondent.
22.As the Civil Revision Petition fails on the ground that the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 are not applicable, I am not deciding the issue as to whether the petitioner is entitled to evict the respondent on the ground of demolition and reconstruction.
23.In the result, the Civil Revision Petition is dismissed. No costs.
To
1.The Rent Controller (District Munsif), Periyakulam.
2.The Subordinate Judge (Rent Controller Appellate Authority), Periyakulam.