Allahabad High Court
Rahul Dixit And Another vs Sri Chandra Kumar Agarwal on 7 December, 2018
Author: Manoj Kumar Gupta
Bench: Manoj Kumar Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 19 Case :- CIVIL REVISION No. - 126 of 2010 Revisionist :- Rahul Dixit And Another Opposite Party :- Sri Chandra Kumar Agarwal Counsel for Revisionist :- K.M. Garg, Anil Sharma Counsel for Opposite Party :- Faneesh Mishra Hon'ble Manoj Kumar Gupta,J.
1. Heard counsel for the plaintiff-revisionists Sri KM Garg and Sri Faneesh Mishra for the defendant-opposite party.
2. The instant revision is directed against the judgement and decree dated 26.11.2009 passed by Additional District Judge, Court No.1, Bijnor in SCC Suit No.11 of 2009, whereby the suit filed by the plaintiff- revisionists (for short 'the plaintiffs') for recovery of arrears of rent and eviction against the defendant-opposite party (for short 'the defendant'), has been dismissed.
3. The suit was filed with the allegation that the defendant was tenant in a shop which was a construction of the year 1992, assessed for the first time on 1.1.1994 and consequently, U.P. Act XIII of 1972 (for short 'the Act') was not applicable to it. The rent at the rate of Rs.1700/- per month was due from January 2009 and taxes since the year 2008-09. The tenancy of the defendant was terminated by a notice dated 29.1.2009 but since he failed to vacate, therefore, the suit was instituted.
4. The defendant contested the suit by filing a written statement in which he pleaded that he had given an advance of Rs.80,000/- to Dev Dutt Dixit, the predecessor-in-interest of the plaintiffs; that the shop was constructed in the year 1983; that the Act was fully applicable; that initially the shop was occupied by Deo Dutt and his son Manoj Deo for doing business of selling medicines but after some time it was let out to him; that a rent agreement was executed between them laying down the terms and conditions of the tenancy; that notice dated 29.1.2009 was given on incorrect allegations; that the notice is void and illegal and does not result in termination of his tenancy.
5. The trial court, on the basis of pleadings of the parties and the submissions made by them framed four points of determination namely :-
1. Whether the provisions of Act No.13 of 1972 are applicable?
2. Whether the plaintiffs have terminated the tenancy of defendant by valid notice?
3. Whether the defendant has been defaulter in payment of rent?
6. While deciding the first point, the trial court placing reliance on the first assessment and other documentary evidence held that the Act was not applicable to the shop in dispute. While deciding the second point relating to validity of notice, the trial court held that the plaintiffs had brought on record a rent agreement dated 15.9.1992 and whereunder the parties had agreed to the tenancy being terminated by a six months' notice after the entire advance amount is adjusted. Although the rent note is unregistered but since it was filed by the plaintiffs themselves, therefore the terms and conditions stipulated therein are binding upon them. Consequently, thirty days notice given by the plaintiffs, was invalid and did not result in determining the tenancy. On issue relating to default, it was held that the defendant was not defaulter rather he had paid rent in advance as mentioned in the rent note, paper No.C-83. Accordingly, the suit has been dismissed.
7. Learned counsel for the plaintiff-revisionists submitted that the rent agreement, though filed by the plaintiffs, was an unregistered document. It purported to create a lease for a period exceeding one year. It is submitted that in the absence of lease deed being registered, it was invalid under Section 107 of the Transfer of Property Act, 1882 and cannot be read in evidence in view of Section 49 of the Registration Act, except for collateral purpose of ascertaining the nature of possession of the defendant. In support of his submission, he has placed reliance on the following judgments :-
Jai Narain Dass and Another vs. Smt. Zubeda Khatoon, (AIR 1972 Allahabad 494) Bhaiya Ramanuj Pratap Deo vs. Lalu Maheshanuj Pratap Deo and others, (AIR 1981 SC 1937) Satish Chand Makhan and others vs. Govardhan Das Byas and others, (1984 (1) ARC 515) Punjab National Bank vs. Ganga Narain Kapur, (AIR 1994 All. 221) Punjab National Bank vs. VIIIth Addl. District Judge, Ghaziabad and others, (2000 (2) ALR 126)
8. It is further submitted that the recital contained in the rent note would reveal that the tenancy was a month to month tenancy and thus, it was determinable by a month notice as provided under Section 106 of the Transfer of Property Act. It is further submitted that since the termination of tenancy was not on ground of forfeiture on account of non-payment of rent but under Section 111(h) therefore, even if there was no default in payment of rent, the suit ought to have been decreed.
9. On the other hand, learned counsel for the defendant submitted that the rent note was filed by the plaintiffs themselves and therefore they cannot resile from the same. He further submitted that under the said rent note, the plaintiffs had taken advance of Rs.80,000/- which was to be adjusted in rent spread over a period of five years and consequently the condition that the tenancy could only be terminated by six months notice is binding upon the plaintiffs. He further submitted that since there is no default in payment of rent, therefore, the suit was rightly dismissed.
10. Indisputably, there exist a rent agreement dated 15.9.1992 (paper no. Ka-83/1). The rent agreement recites that a shop which was constructed in 1992 and was assessed for the first time since 1.4.1994 and to which provisions of U.P. Act No.13 of 1972 were not applicable, was let out to the defendant on payment of rent of Rs.1400/- per month apart from house tax and water tax. It was also one of the conditions of the rent agreement that Rs.80,000/- would be paid as advance by the defendant at the time of inception of tenancy and the said amount would be adjusted every month towards payment of rent. After expiry of four years, the rent would stand enhanced to Rs.1500/- per month and once again adjustment from the advance amount would continue. The rent note further provided that until the entire amount of Rs.80,000/- is adjusted towards rent in the manner stipulated thereunder, the defendant could not be evicted but after the amount is adjusted, his eviction could take place after serving upon him notice of six months. Some of the clauses of the rent agreement which have relevance for deciding the controversy involved in the instant matter, are reproduced below :-
Þ2& ;g fd f}rh; i{k] izFke i{k dks 80]000@& :0 ¼vLlh gtkj :i;s½ is'kxh crkSj fdjk;k nqdku vnk djsxk rFkk nqdku dk fdjk;k 1400@& :0 ¼pkSng lkS :i;ss½ ekfld nj ls gksxkA 3& ;g fd tc rd is'kxh fdjk;k dh jde 80]000@& :0 ¼vLlh gtkj :i;s½ ekg nj ekg 1400@& :0 ¼pkSng lkS :i;ss½ rFkk pkj o"kZ ds ckn 1500@& :0 ¼iUnzg lkS :i;ss½ ekg dh nj ls fdjk;s esa eqtjk gksdj iw.kZ /ku lek;ksftr u gks tk;sxk] rc rd izFke i{k f}rh; i{k ls udn ekfld fdjk;k ysus dk gdnkj u gksxkA 7& ;g fd f}rh; i{k nqdku dk dCtk ysus dh frfFk ls gj pkSFks o"kZ ds rqjUr ckn 100 :0 ¼lkS :i;s½ ekfld fdjk;k c<+kdj izFke i{k dks gj ekg udn vnk djrk jgsxk] ftldh jlhn izkIr djsxkA 8& ;g fd ;fn is'kxh fdjk;k 80]000@& :0 ¼vLlh gtkj :i;s½ tks fd f}rh; i{k us izFke i{k dks vnk fd;k gS og ekfld fdjk;k 1400@& :0 ¼pkSng lkS :i;ss½ ds fglkc ls pkj lky dh vof/k esa eqtjk ugha gks ikrk gS rc Hkh cdk;k is'kxh fdjk;s esa ls o`f) 'kqnk fdjk;k eqtjk fd;k tk;sxkA 9& ;g fd f}rh; i{k mDr nqdku dks dsoy esfMdy LVksj ds O;olk; pykus gsrq fdjk;s ij ys jgk gS vr% mDr nqdku fdlh le; Hkh vkSj fdlh :i esa fdlh izdkj dk vU; dksbZ O;olk; f}rh; i{k djus dk vf/kdkjh u gksxkA 14& ;g fd tc rd is'kxh fdjk;s dk /ku 80]000@& :0 ¼vLlh gtkj :i;s½ ekfld fdjk;s esa lek;ksftr ugha gks tk;sxk rc rd f}rh; i{k nqdku [kkyh ugha djsxk u izFke i{k [kkyh djkus dks dg ldsxk vU;Fkk is'kxh 'ks"k fdjk;s dh jde dk f}rh; i{k Lo;a ftEesnkj gksxk rFkk izFke i{k ls 'ks"k jde dk okfil ysus dk gdnkj u gksxkA 15& ;g fd is'kxh fdjk;k lek;ksftr gksus ds ckn f}rh; i{k 6 ekg dk fyf[kr uksfVl nsus ds ckn nqdku [kkyh dj ldrk gS blh izdkj izFke i{k Hkh 6 ekg dk uksfVl f}rh; i{k dks nsdj nqdku [kkyh djk ldsxkAß (emphasis supplied)
11. It is not in dispute between the parties that as per stipulation contained in the said rent agreement, the rent used to be adjusted from the advance amount and the entire advance money stood adjusted in the month of September 1997. It further appears that as per stipulation in the rent agreement, the defendant kept enhancing the rent so that at the time of institution of the suit the rent was Rs.1700/- per month apart from house tax and water tax.
12. Section 107 of Transfer of Property Act stipulates the manner in which lease of immovable property could be made. Section 107, as applicable in the State, reads thus :-
"107. Leases how made.--A lease of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument.
All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.
Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee:
Provided that the State Government may,[***] from time to time, by notification in the Official Gazette, direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession. STATE AMENDMENT Uttar Pradesh Amendment of Section 107.- In Section 107 of the principal Act:
(a) for the second paragraph, the following paragraph shall be substituted, namely :
"All other leases of immovable property may be made either by a registered instrument or, by an agreement oral or accompanied by delivery of possession".
(b) the third paragraph and the proviso shall be omitted [Vide U.P. Act 57 of 1976, S.31 (w.e.f. 1-1-1977)]
13. Thus, according to Section 107 of the Transfer of Property Act, lease of immovable property from year to year or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument. A perusal of the terms and conditions of the rent agreement between the parties leave no manner of doubt that the lease between the parties was for period exceeding one year, therefore, in view of Section 107 such a lease could have been created only by a registered document.
14. Section 49 of the Registration Act stipulates that no document required by Section 17 or by any provision of the Transfer of Property Act, 1882, or of any other law for the time being in force to be registered, shall affect any immovable property comprised therein, or confer any power or create any right or relationship or be received, as evidence of any transaction affecting such property or conferring such power or creating such right or relationship, unless it has been registered. The proviso to the said section which is in the nature of exception, provides that an unregistered document affecting immovable property but not registered in the matter prescribed could be read in evidence of any collateral transaction not required to be effected by registered instrument. Section 17(1)(d) specifically provides that lease of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent, could only be created by a registered document as also provided under Section 107 of the Transfer of Property Act.
15. In Bhaiya Ramanuj Pratap Deo vs. Lalu Maheshanuj Pratap Deo and others, AIR 1981 SC 1937, the Supreme Court held that a lease agreement, which is required to be registered as per provisions of Section 17 of the Registration Act, cannot be received as evidence of any transaction affecting the immovable property. It could only be received as evidence of any collateral transaction, not required to be effected by registered instrument. It has been held thus :-
"As regards the second reason, the argument is based on Section 17 read with Section 49 of the Indian Registration Act. Section 17 of the Registration Act enumerates the documents requiring registration. Section 49 of the Registration Act provides that 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, (b) ................. (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered. Khorposh (maintenance) deed is a document which requires registration within the meaning of section 17 of the Indian Registration Act and as the document was not registered it cannot be received as evidence of any transaction affecting such property. Proviso to section 49, however, permits the use of the document, even though unregistered, as evidence of any collateral transaction not required to be effected by registered instrument. In this view of the legal position the maintenance deed can be looked into for collateral purpose of ascertaining the nature of possession."
16. Again in Satish Chand Makhan and others vs. Govardhan Das Byas and others, 1984 (1) ARC 515, it is clearly held by the Supreme Court that an unregistered lease for a period exceeding one year, is inadmissible in evidence. It could only be read for collateral purpose of proving the nature and character of possession of the person occupying the premises thereunder. A person who holds over under an unregistered lease and continues in possession by paying monthly rent holds over as a tenant from month to month. The observations are as under :-
".........................The unregistered draft lease agreement Exh. B-2 was clearly inadmissible in evidence under Section 49 of the Registration Act, except for the collateral purpose of proving the nature and character of possession of the collateral purpose of proving the nature and character of possession of the defendants. The documents Exh. B-2 was admissible under the proviso to Section 49 only for a collateral purpose of showing the nature and character of possession of the defendants. The proviso to Section 49 was however not applicable in the present case inasmuch as the terms of a lease are not a "collateral purpose" within its meaning. It follows that the unregistered draft lease agreement Exh. B-2 was inadmissible in evidence to prove the transaction of lease. It was also ineffectual to create a valid lease for a renewed term of nine years for want of registration as required under Section 17(1)(d) of the Registration Act.
7. We have no doubt in our mind that the defendants were tenants holding over under Section 116 of the Transfer of Property Act and therefore it was necessary for the plaintiffs to serve a notice under Section 106 of the Act. Where a person holds over under an unregistered lease and continues in possession by paying the monthly rent, the holding over must be held as a tenancy from month to month : Mulla's Transfer of Property Act, 5th Edn., p. 762."
17. In the instant case, the lease agreement was for a period exceeding one year and therefore, the lease agreement being unregistered was inadmissible in evidence. It did not affect the immovable property comprised therein nor result in creation of any enforceable right in favour of any party. The terms and conditions of the tenancy incorporated therein, could not be enforced through a court of law. It is clear from the admitted facts that the entire advance amount of Rs.80,000/-, which was paid by defendant, stood adjusted at the end of fifth year i.e., in the year 1997 and thereafter, as per own case of the defendant, he had continued as month to month tenant on payment of rent on a monthly basis. Section 106 of the Transfer of Property Act provides that in the absence of a contract or local law or usage to the contrary, a lease of immovable property, for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months' notice; and a lease or immovable property for any other purpose, shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen day's notice. It is pertinent to note that prior to amendment of Section 106 of the Transfer of Property Act by Act No.3 of 2003, under the U.P. Amendment, the notice period for terminating tenancy which was not a yearly tenancy, nor for agricultural or industrial purpose, was thirty days. It is not in dispute that the shop was let out for running a medical store and the lease was neither for agricultural purpose nor for industrial purpose.
18. Concededly, U.P. Act No.13 of 1972 is not applicable, as the finding recorded in that regard is not under challenge. Consequently, the tenancy was terminable as per provisions of Section 111(h) which stipulates that lease of immovable property determines on the expiration of a notice to determine the lease duly given by one party to the other. In the instant case, the notice given to the defendant clearly states that the plaintiffs do not wish to keep the defendant as tenant after expiry of thirty days and his tenancy would stand determined thereafter. The notice in question is clearly referable to Section 106 read with Section 111(h) of the Transfer of Property Act. It was not a notice given to the tenant on ground of forfeiture under Section 111(g) and thus, the plaintiff was not required to prove default in payment of rent to entitle them of a decree of eviction.
19. The finding recorded by the trial court regarding notice being invalid, as it was only a thirty days notice and not six months notice, is therefore, wholly illegal and not sustainable in law.
20. For the reasons stated above, the notice under Section 106 of the Transfer of Property Act being perfectly valid, resulted in determination of the tenancy of the defendant and consequently the suit for eviction, is liable to be decreed. In consequence, the impugned judgement of the trial court dated 26.11.2009 is hereby set aside. The suit for eviction is decreed. Finding on issue no.3, not being under challenge, the suit for arrears of rent is dismissed.
21. At this stage counsel for the defendant prayed for three months time being granted to vacate the demised premises, to which counsel for the plaintiffs has no objection. Accordingly, he is granted three months' time subject to furnishing of an undertaking within three weeks that he would handover vacant possession of the shop in question to the plaintiffs at the expiry of three months from today and shall not induct any third party.
22. Counsel for the defendant has agreed to pay damages for the said period of three months at the rate of Rs.2000/- per month in advance, within three weeks from today. In case of default of any of the above conditions, the protection granted by instant order shall stand vacated and it shall be open to the plaintiffs to execute the decree forthwith.
23. The revision is allowed, but without any order as to costs.
Order Date :- 7.12.2018 skv (Manoj Kumar Gupta, J.)