Punjab-Haryana High Court
State Bank Of Patiala vs Joint Hindu Family Firm Inder Sain Nanak ... on 10 December, 1993
Equivalent citations: (1993)105PLR520
JUDGMENT S.K. Jain, J.
1. The appellant was the tenant in building bearing No. 194 situated in G.T. Road, Gharaunda, which had been rented out to them in 1977. The respondent, hereinafter referred to as the "landlord", terminated the tenancy of the appellant by serving notice under Section 106 of the Transfer of Property Act and filed Civil Suit No. 252 of 1985 on 14.3.1985 for recovery of possession. It was filed because of Section 1(3) of the Haryana Urban (Control of Rent & Eviction) Act, 1973 (hereinafter referred to as 'the Act'), Learned Senior Sub Judge, Karnal, vide its judgment and decree dated 17.4.1987, decreed the suit of the landlord holding: -
(i) that the demised premises were constructed and completed not before 17.4.1987;
(ii) that the exemption period of 10 years had not expired and, therefore, the provisions of Haryana Urban (Control of Rent & Eviction) Act, 1973 were not applicable on the demised premises;
(iii) that the tenant had been terminated by a valid notice under Section 106 of the Transfer of Property Act; and
(iv) that the suit for possession by ejectment of the tenant was competent.
2. Feeling aggrieved, the tenant preferred Civil Appeal No. 73 of 1988. It was heard and dismissed by the Additional District Judge, Karnal, vide his judgment and decree dated 5.1.1989.
3. It is that judgment and decree of the first appellate Court which has been appealed against by the tenant and which requires examination of its sustainability.
4. I have seen the pleadings in the suit, the evidence adduced by the parties in the suit and judgment of both the courts below.
5. Learned counsel for the appellant has vehemently argued that there was no evidence on record showing that the demised premises had been constructed and completed after 30.4.1973 and thus the period of exemption of ten years had not expired and, therefore, Civil Suit was not maintainable and the remedy of the landlord was to file a petition under Section 13 of the Act. He has further argued that according to the term in the lease deed, the landlord was bound to grant the appellant a renewed lease of the demised premises at any time before the expiry of the lease for such further two periods not exceeding ten years in all on the same terms and conditions. He has assailed the findings of the Courts below on issue No. 3 on the ground that the notice under Section 106 of the Transfer of Property Act was illegal.
6. Learned counsel for the landlord has argued supporting the impugned judgment. He has submitted that the landlord had led cogent, convincing and reliable evidence on record on the basis where of the learned Court below had rightly arrived at a conclusion that ten years period of exemption from the applicability of the Act had not expired and the Civil Court was competent to pass a decree of ejectment in respect of the demised premises. It was further argued that the lease deed Ex. D.1 required compulsory registration and as the same was not got registered, therefore, the terms and conditions contained therein could not be enforced against the landlord.
7. In order to appreciate the rival argument it is expedient to examine the relevant provisions of the Act.
8. The Act was passed with the object to control the increase of rent of certain buildings and rented lands situated within the limits of Urban areas and eviction of tenants therefrom. For the purposes of this case, it would suffice if the provisions of Section 1(3) and 13(1) of the Act are borne in mind.
9. Section 1(3) of the Act provides as follows:-
"Nothing in this Act shall apply to any building the construction of which is completed on or after the commencement of this Act for a period of ten years from the date of its completion"
10. Section 13 of the Act deals with the evidence of tenants and Sub section (1) thereof provides that the tenant in possession of a building or a rented land shall not be evicted therefrom except in accordance with the provisions of that Section. The section thereafter enumerates the statutory grounds for eviction upon which eviction is permitted.
11. In para No. 5 of the amended plaint, the plea of the landlord is that since the demised premises were constructed and took completion after 30.4.1973 i.e. date of enforcement of the Act, the provisions of the Act were not attracted and hence the ejectment of the tenant could be sought by filing a Civil Suit. Vide corresponding para of the written statement the tenant took the stand that the demised premises were constructed and completed much prior to 30.4.1973 and, therefore, the provisions of the Act are fully applicable on the building in question and, therefore, the civil suit was not maintainable.
12. Now on to the evidence on record. Examination of lease deed Ex. D-1 shows that it is for a period of more than one year. This fact is also admitted by the parties. Section 17 of the Registration Act, 1908 provides:-
"17. Documents of which registration is compulsory - (1) The following documents shall be registered, if the property to which they relate is situate 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 (20 of 1866), or the Indian Registration Act, 1871 (8 of 1871), or the Indian Registration Act, 1877 (3 of 1877), or this Act came or comes into force, namely: -
(a)x x x x x x x x
(b)x x x x x x x x
(c)x x x x x x x x
(d) lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;
(e)x x x x x x x x Provided x x x x x x x (2)x x x x x x x x
(i) x to (xii) xx x x x x x Explanation;- x x x x x x x (3) x x x x x x x x x "
From the analytical examination the above provisions of Section 17(1)(d) of the Registration Act, it is evident that a lease of immovable property from year to year, or for any term exceeding one year, on reserving a yearly rent is compulsorily registerable.
13. Vide Ex-D-1 the appellant Bank was inducted into the demised premises as a tenant for a period of five years. Section 107 of the Transfer of Property Act provides that a lease from year to year or for any term exceeding one year, or reserving a yearly rent can be made only by a registered document. The said document of lease is, therefore, compulsorily registerable under the provisions of Section 107 of the Transfer of Property Act read with Section 17(1)(d) of the Registration Act, 1908 Under these circumstances unregistered lease deed Ex.D-1 could though be admitted into evidence for collateral purpose but terms there of were certainly not a collateral purpose' and the rights under it could not be enforced.
14. In Delhi Motor Co. and Ors. v. U. A. Basrurkar (dead) by his legal representatives and Ors., AIR 1968 Supreme Court 794, where the lease for a period exceeding one year was evidenced by a document it was held that Section 107 of the Transfer of Property Act was clearly applicable and that such a lease could not have been validly made, except under the registered instrument. Consequently, the parties cannot claim any right on the basis of such a lease evidenced by unregistered document.
15. Again, in Satish Chand Makhan and Ors. v. Goverdhan Dass Byas and Ors., 1984(1) RCR 264, where a tenant occupied a rented premises after the expiry of lease evidenced by a document which required compulsory registration, the Supreme Court held that such a person was tenant holding over and not a tenant at sufferance. It was further held that although an unregistered lease deed could be admitted into evidence for collateral purpose but terms of the lease deed were not a collateral purpose. The ratio laid down by this Court in Ujagar Singh v. Prem Kumar, (1986-1) 89 PLR 506, cited at the bar on behalf of the appellant cannot be grafted on the facts of this case. Therein it was held that all the terms in the rent note except those which contravene the provisions of the Act may be applicable on a tenant holding over. In that case the tenancy was for 11 months and was evidenced by an unregistered document. It is now well settled that the terms and conditions contained in a document which was compulsorily registerable could not be enforced nor the opposite party of such a lease deed can be bound by such terms and conditions. The learned lower appellate Court while dealing with issue No. 1, 2 and 4 collectively has rightly held that the lease deed Ex. D.1 was not admissible in evidence except for a collateral purpose and as regards the terms and conditions including extension and renewal of the period of lease was not a collateral purpose.
16. If the case of the appellant is taken at its face value and it is assumed for the sake of argument that vide letters Exhibits D-3 and D-4 renewal of the lease and acknowledgement thereof was granted by Sant Lal, Munim of the landlord, even then the said renewal has no meaning in the eye of law for the simple reason that there is not even an iota of evidence on record to show that said Sant Lal had any authority to renew the lease on behalf of the landlord. Going a step further, if it is also assumed that he had the authority to renew the lease, even then the renewal was again not enforceable because such document renewing a lease for a period of five years was required to be registered compulsorily and that having not been done, it could not be availed of by the tenant.
17. The answer to the question whether the Civil Suit for ejectment was competent, depends upon the fact as to whether the demised premises were constructed and completed after the coming in force of "The Haryana Urban (Control of Kent and Eviction) Act, 1973." As mentioned hereinbefore, Section 1(3) of the Act provides that the provisions of the Act will not apply to any building the construction of which is completed on or after the commencement of the Act for a period of ten years from the date of its completion. The Act came into force on 27.4.1973. Therefore, the provisions of the Act will not be applicable on the demised premises for a period of ten years if the same were constructed and completed after the crucial date i.e. 27.4.1973.
18. In Atma Ram Mittal v. Ishwar Singh Punia, AIR 1988 Supreme Court 2031, it was held by the Apex Court that if the suit for eviction filed within ten years from completion of construction and period of ten years expired during the pendency of the suit then also the benefit of exemption under Section 1(3) of the Act was not lost and the Civil Court could pass a decree of ejectment in favour of the plaintiff. It was further held that bearing in mind the well settled principles that the rights of the parties crystallise to the date of the institution of the suit the meaningful construction of the provision granting exemption to a building from operation of the Act must be that the exemption would apply for a period of 10 years and will continue to be available until suit for eviction is disposed of or adjudicated.
19. Keeping in view the above said law laid down by the Supreme Court, it has to be seen whether the demised premises had been constructed and completed within ten years prior to 13.3.1985, the date on which the suit was instituted.
20. Close scrutiny of the evidence on record shows that Nanak Chand (PW-2), the karta of the joint Hindu family (landlord), has proved on record site plan Ex. P-1 and stated that the said site plan was submitted on 3.11.1976; that it was neither rejected nor sanctioned within sixty days of its submission and, therefore, he had started raising constructions work of the ground floor was completed within a period of two months. The testimony of PW-3 Willam Azad lends full corroboration to his evidence. Willam Azad was a Municipal Engineer employed with Gharaunda municipality from 1964 to 1982. According to him, site plan Ex. P1 was submitted by the landlord on 3.11.1976 and it was passed on 8.8.1977. He had inspected the site and at that time he found it to be a vacant plot. Both of these witnesses have withstood the test of cross-examination very well and no dent in their testimony could be created nor the said evidence had been rebutted. Therefore, the learned courts below have rightly come to the conclusion that the construction work of ground floor was started some time after 3.1.1977 and was completed within two months thereafter. It has also come in the evidence of PW-3 Willam Azad, the Municipal Engineer, that the site plan Ex.P-2 for the construction of the strong room on the ground floor of the demised premises was approved by the Municipal Committee, Gharaunda on 8.8.1977 and site plan Ex.P-3 in respect of the first floor was approved on 26.2.1979. Thus, the learned Courts below have rightly came to the conclusion that the strong room and the first floor must had been constructed after 8.8.1977 and 26.2.1979 respectively. On the basis of the above evidence, it has rightly been found by the learned trial Court and affirmed by the first appellate Court that the construction of the demised premises was completed on or after March April 1977 and, therefore, the provisions of the Act were not applicable to the demised premises on the date of the filing of the suit and that being so, the Civil suit for ejectment of the tenant from the demised premises was competent. In addition to the above evidence, it is also an admitted fact that the tenant-Bank had advanced a loan of Rs. 50,000/- on 24.7.1977 for raising the above construction.
21. Thus, seen from any angle, the landlord has established on record by leading cogent, convincing and reliable evidence, that the demised premises was constructed and completed somewhere in March/April 1977.
22. Now on to the evidence led by the tenant-Bank. DW2 Inderjit Seth and DW6 Narinder Kumar Gupta who is employee of the tenant-Bank cannot be heard to say that the disputed building was previously in the shape of old godowns and the landlord had merely carried some renovation work before leasing out the same to the Bank. These witnesses cannot be said to be from independent source and, therefore, the learned Courts below have rightly disbelieved them.
23. Learned Courts below have rightly held that only the general principles of Transfer of Property Act are applicable in the State of Haryana; that a period of more than 15 days having been provided to the tenant-appellant in the notice Ex. P.4 it was reasonable and that in Haryana notice under Section 106 of the Transfer of Property Act need not necessarily terminate strictly with the end of the month of the tenancy. Identical view was taken by this Court in Charanjit Lal v. Narain Singh, 1972 Current Law Journal 511, wherein it was held that it is undisputed that the provisions of Section 106 of the Transfer of Property Act are not applicable to Punjab (at the relevant time area now in Haryana was also included in the Erstwhile State of Punjab). However, the principles of the said Section have been generally applied and that a notice in Punjab need not necessarily terminate strictly with the end of the month of the tenancy.
24. In view of the above discussion, no fault can be found with the concurrent findings recorded by the two Courts below on various issues.
25. Resultantly, the appeal fails and the same is hereby dismissed. However, the parties are left to bear their own costs.