Orissa High Court
Ramanath Sahu vs Ananta Prasad Sahoo on 20 June, 2017
Author: D. Dash
Bench: D.Dash
HIGH COURT OF ORISSA: CUTTACK.
R.S.A. NO. 185 of 2016
From the judgment and decree dated 15.02.2016 and 27.02.2016
respectively passed by the learned Additional District Judge, Baripada
in RFA No.29 of 2015.
Ramanath Sahu ...... Appellant
- Versus-
Ananta Prasad Sahoo ...... Respondent
For Appellant : M/s.S.K.Dash, A.K.Hotta,
Mrs.A.Dhalsamanta,
B.P.Dhal and Miss S.Das,
Advocates
For Respondent : M/s. P.K.Rath, R.N.Parija,
A.K.Rout, S.K.Pattnaik,
A.Behera, P.K.Sahoo,
S.K.Behera and B.K.Dash
, Advocates.
---------
PRESENT:
THE HONOURABLE SHRI JUSTICE D.DASH
Date of hearing- 11.05.2017 : Date of judgment- 20.06.2017
This second appeal under section 100 of the Code of Civil
Procedure has been filed questioning the judgment and decree passed
by the first appellate court in RFA No. 29 of 2015. By the said judgment
and decree in the first appeal, the learned lower appellate court has
confirmed the judgment and decree passed by the trial court in C.S. No.
448/223 of 2011/2010 by affirming all the findings recorded therein.
2
The suit filed by the respondent as plaintiff which had been decreed
by the trial court directing the appellant-defendant to vacate the suit
shop room and to hand over possession of the same to the respondent-
plaintiff as also to pay the arrear rent and damage as indicated therein
having thus held the field, in the present second appeal, all those are
challenged by the unsuccessful defendant as the appellant.
2. For the sake of convenience, in order to bring in clarity
and avoid confusion, the parties hereinafter have been referred to as
they have been arraigned in the trial court.
3. Plaintiff's case is that he is the owner in possession of the
land over which the suit shop room with other rooms stand. He had
purchased the same from one Sri Lohit Dash by registered sale deed
dated 18.5.2007 for valuable consideration. Pursuant to the same, the
land has been mutated in the name of the plaintiff under separate
khata. The possession of the suit land and houses standing over there
having been handed over by the vendor namely, Lohit, the plaintiff has
taken over the same This is said to be with the knowledge of all the
tenants including the defendant in occupation of different rooms
standing over the suit land. It is stated that all the tenants then in
occupation of different rooms standing in a row on the said land
accepted and acknowledged the plaintiff as their land lord and thus
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continued to remain under him as before as they were under said
Lohit from whom the plaintiff purchased the property in question.
It has stated that after purchase of the suit land, the
plaintiff went on receiving the monthly rent as agreed upon from the
tenants and they continued to pay accordingly. The defendant being
one of the tenants paid him the rent @ Rs.660/- per month from the
month of June 2007 to November 2007 and from December 2007 to
May 2009 at the rate of Rs.1500/- per month. It is further stated that
necessary receipts to that effect had been prepared at the time of
tendering of the rent, the plaintiff and the defendant have appended
their signatures in token of receipt and payment respectively. It is next
stated that in the month of June 2009, the plaintiff asked the
defendant to come forward to execute an agreement with him in
respect of his continuance of tenancy in so far as the suit shop room is
concerned. It is stated that this proposal being given, the defendant
readily replied to be having no intention to continue with the
occupation and so told that he would be vacating the suit shop room.
But surprisingly later he changed his mind. After making such false
promise so as to avoid to execute the agreement, he is said to have
adopted to dilatory tactics. He then stopped paying monthly rent to the
plaintiff for such occupation of the suit shop room.
4
The plaintiff thus finding no other alternative served a
notice upon, the defendant demanding vacant possession of the suit
shop room and calling upon him to leave the possession of the suit
shop room by paying arrear rent etc. The response then came that the
defendant was all along a tenant under Lohit Das (who is the vendor of
the plaintiff). He has never been a tenant under the plaintiff. In the
reply, the defendant thus disputed the relationship of landlord and
tenant between the plaintiff and himself in so far as the suit shop
room is concerned. In other words, the defendant advanced his
defence in reply to have never recognized the plaintiff to be having any
nexus with the occupation of the defendant in respect of suit shop
room, admitting only to the extent that he had been inducted therein
as a tenant and put into possession by said Lohit Das (the vendor of
the plaintiff). The plaintiff states that the defendant being well aware of
the transaction of sale of the land and the suit shop room by his
erstwhile landlord namely Lohit to the plaintiff and having also
accepted and acknowledged the plaintiff as his landlord is estopped to
challenge the title of the plaintiff. It is also said that the defendant
having once acknowledged the plaintiff as the landlord in respect of
the suit shop room , more so by paying rent for some period after
purchase, he is legally disabled to the question the said relationship.
5
Thus finally the defendant having taken the defence as above when
denied to part with the possession of the suit shop house in favour of
the plaintiff and questioned his right of entitlement of vacant
possession of the suit shop room; the suit for eviction has been filed.
4. The defendant in the written statement from the very
beginning denying the relationship of landlord and tenant between the
plaintiff and himself; has further denied the factum of payment of rent
by him to the plaintiff; the title of the plaintiff over the suit land as is
claimed to have been acquired by purchase of the same from the
landlord of the defendant namely, Lohit by registered sale deed
followed by delivery of possession. It is also stated that the defendant
was never aware of such transaction between his landlord namely,
Lohit and the plaintiff and also as regards the factum of delivery of
possession pursuant to any such transaction.
It is next asserted that the defendant is a tenant under
Lohit in respect of the suit shop room and he is enjoying said status
for more than 12 years. It is said that he had entered into an
agreement to that effect with said Lohit on 4.1.2006 for a period of 10
years and has been paying the rent towards his occupation of the suit
shop room to him. With all these, the defendant has prayed to dismiss
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the suit filed for grant of the relief of eviction of the defendant from
the suit shop room together with other releifs as prayed for.
5. On the above rival pleadings, the trial court framed the
following issues:-
a) Whether the suit is maintainable having cause of
action and is not barred by law of limitation and is not
bad for non joinder of necessary parties?
b) whether the plaintiff has got locus standi to bring
the suit?
c) whether the plaintiff has got title over the suit land
including the suit shop room?
d) whether the defendant is a tenant under the
plaintiff with respect to the suit shop room?
e) whether the plaintiff has validly determined the
tenancy of the defendant?
f) whether the defendant is liable to be evicted from
the suit shop room and liable to pay arrear rent and
damages?
g) whether the plaintiff is entitled to any other relief in
the suit?
On the face of the case and counter case set up by the
parties, there appears no such mistake in framing the issues. There
cannot be any second opinion that issue no. 2, 3 and 4 must come
under one set to receive a composite answer being dealt with together
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for decision. Rest of the issues would remain in another set of
technical in nature.
6. First of all the trial court has answered issue no. 1 holding
the suit to be maintainable over ruling all the objection of lack of
cause of action; limitation and non-joinder of necessary parties. So
rightly the first set of issues regarding technical objections has been
decided in favour of the plaintiff.
Next taking up the second set comprising issue nos. 2, 3
and 4 together for decision which are undoubtedly the crucial issues
being intertwined, the trial court has returned the answer in favour of
the plaintiff.
7. In deciding the plaintiff's claim of title and relationship of
landlord and tenant between himself and the defendant as the
foundation for the suit vis a vis the denial of all those by the
defendants; in other words the status of the parties qua suit shop
room as well as inter se, upon analysis of evidence let in by the parties
in support of their respective case, the final answer has been returned
finding favour with the case of the plaintiff.
Having concluded that the defendant is the tenant under
the plaintiff in respect of the suit shop room, the trial court has next
proceeded to examine as to whether the said tenancy has been
8
terminated in accordance with the law as the precondition for
institution of the suit for eviction. It has also been answered in favour
of the plaintiff mainly by accepting the documentary evidence proved
from the side of the plaintiff. In view of all these, the suit, having been
decreed granting all the reliefs claimed therein, the defendant filed the
first appeal under section 96 of the Code calling in question all those
findings, causing sufferance to him for the plaintiff being granted with
all the reliefs.
8. The lower appellate court in seisin of the appeal in
discharging its duty as mandated under law has proceeded to examine
the sustainability of the findings recorded by the trial court on all the
issues looking at the facts and circumstances of the case, the evidence
as well as the settled position of law. It has also in the said exercise
simultaneously addressed the rival contention raised therein.
Having said that the burden of proof lies on the plaintiff to
establish the relationship of landlord and tenant between him and
plaintiff, the lower appellate court has proceeded to examine the
evidence available on record as its end in order for testing the
correctness of the finding on the trial court on that score.
9. Upon critical examination of evidence and its analysis,
keeping the rival pleading in the backdrop and viewing the settled legal
9
position as noted therein the judgment; the lower appellate court
has accepted the deed of sale standing in favour of the plaintiff for the
purpose of the suit. It has also held that the defendant has failed to
prove that he has been paying the rent to Lohit, the vendor of the
plaintiff in respect of the suit shop room in his occupation as a tenant
and thus has not shown his status as that of a tenant under Lohit all
along. The delivery of possession of the purchased property by the
plaintiff as claimed to have been given by Lohit has also been found
acceptable from the evidence on record being viewed with the custody
of all the original documents including those even concerning the so-
called tenancy i.e. the original agreements between Saraswati Dash,
whose grandson is Lohit who admittedly stepped into the shoes of
landlord later. In view of that merely because a suit i.e. C.S. No. 511 of
2008 had been instituted by Lohit against the plaintiff which also by
then stood dismissed for default (which of course as per the
submission of learned counsel for the appellant, has been restored by
the order in CMA No. 39 of 2012), the lower appellant court has found
the plaintiff to be the landlord of the defendant-tenant qua suit shop
room in occupation of the defendant. It has also held that the
defendant is estopped to challenge the title of the plaintiff in view of the
provision enshrined in section 116 of the Evidence Act. Therefore, the
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relationship having been found, the notice has been held to be valid.
In view of all these, the lower appellate court has confirmed the
judgment and decree passed by the trial court.
10. The appeal has been admitted on the following substantial
question of law:-
"Whether the courts below have erred in law by entitling
the plaintiff with the relief of eviction of the defendant in
the suit when the very basis of claim of title of the plaintiff
by virtue of the registered sale deed is under cloud and
whether in such circumstance the findings of the courts
below that the defendant is a tenant under the plaintiff, so
called purchaser of the property from the erstwhile
landlord of the defendant is tenable in the eye of law by
holding the attornment?"
11. Learned counsel for the appellant submits that when the
very title of the plaintiff is awaiting the decision in the civil suit filed by
Lohit, the so called vendor of the plaintiff, the courts below have erred
in law by holding that the plaintiff has stepped into the shoes of said
Lohit, the landlord of the defendant by virtue of that transaction.
According to him, in the facts and circumstances, the finding of the
courts below as regards the relationship of landlord and tenant
between the plaintiff and defendant is untenable in the eye of law as
the attornment by operation of law does not have its play here. He also
contends that the payment of rent by the defendant to the plaintiff
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ought not to have been taken as the circumstance
favouring said attornment. He next contends that unless the suit
concerning the passing of title over the property in question to the
hands of the plaintiff is decided, this suit for eviction has to be held to
be not maintainable or in the alternative, the courts below ought to
have stayed this suit till disposal of Civil Suit No. 511 of 2008 in
exercise of inherent power under section 151 of the Code.
12. Learned counsel for the respondent in the written note of
submission has contended in favour of the finding of relationship of
landlord and tenant between the plaintiff and defendant as recorded
by the courts below. According to him even without going to the
question of passing of title of the property to the hands of the plaintiff,
the finding of fact concurrently rendered as regards the payment of
rent by the defendant to the plaintiff is enough to hold the suit for
eviction as maintainable even assuming for a moment that the
plaintiff's title is under cloud. According to him the submission, the
factum of payment of rent for the occupation of the suit shop room by
the defendant to the plaintiff as has been concurrently held by the
courts below which has no infirmity both legal or factual, clearly leads
in support of confirmation of the decree for eviction as well as recovery
of rent and damage. It is contended that there being no perversity in
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the matter of appreciation of evidence by the courts below in
recording the finding of payment and acceptance of rent which mainly
rest upon documentary evidence receiving corroboration from oral
evidence and remaining undemolished through counter evidence,
there can be no inclination by this Court to vary the same even though
this Court finds some reason or other of its own to do so. It is further
contended that the defendant has no explanation for the said act of
payment of rent which has been duly proved by the plaintiff and when
the defendant pleads those receipts to be forged; alas, neither he has
so established through evidence to discharge the burden of proof
shouldered by him nor has he proved his case of payment of rent to
Lohit Das as is claimed by him which would have indirectly countered
the case set up by the parties. It is contended that by merely raising a
dispute on title between the landlord and subsequent purchaser
claiming as landlord, the suit for eviction of a tenant cannot be
thwarted on that lone basis which is not so easy a task. As per the
submission in the note, the defendant therefore in the suit for eviction
has to satisfy that in the said suit, the challenger to the transaction
standing in favour of the present plaintiff has a very strong prima facie
case so that this Court in seisin of the suit for eviction would not go to
touch upon the intricate problem concerning title.
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13. Indisputably, the plaintiff had not inducted the defendant
as a tenant in respect of the suit shop room. The defendant was a
tenant prior to the so-called purchase of the property which includes
the suit shop room from Lohit, and prior to that under Saraswati, the
grandmother of Lohit. The defendant has taken a stand that he had
entered into an agreement with Lohit for the period commencing from
4.1.20106and expiring on 3.1.2016. It is stated that at the time of institution of suit and thereafter he had/ has been paying rent to Lohit.
14. It may be stated here that the defendant has been carrying on business activity dealing with bags etc. by occupying the suit shop room and his tenancy had been created firstly with Saraswati and thereafter with Lohit which he admits. Admittedly, the building over the land in question has two floors and the ground floor consists of four rooms and in the first floor, one room is there.
15. The lower appellate court has held the defendant to have failed to prove that he continued to be a tenant under Lohit Dash. It may be also stated here that the plaintiff claims to have purchased the property by registered sale deed dated 18.5.2007. The defendant although has proved a deed towards his occupation of the room for a 14 period of ten years with Lohit, in cross- examination, he has deposed that although the agreement with that Saraswati who had first inducted him as a tenant was valid till 2007 yet he before expiry of said period had already attorned the grandson of Saraswati namely, Lohit as his landlord who had stepped into the shoes of landlord in respect to the rooms in that building over the land in question by virtue of arrangement and order of the Court. The defendant has not proved any receipt showing payment of rent to Lohit. Lohit has not been examined as a witness on behalf of the defendant in support of that claim of continued tenancy of the defendant and payment of rent, if any, to him for said occupation of the suit shop room. He has stated that Lohit has told him that the registered sale deed in favour of the plaintiff is a forged one. However, he has expressed his ignorance if that has been so declared by any court as yet. This defendant has denied his knowledge as to what other tenants of other rooms claimed to have been purchased by the plaintiff are doing and whether rent is being paid by them to the plaintiff or not. More interestingly, when defendant has stated that the signatures appearing on the rent receipts showing payment of rent to the plaintiff by him are not his signatures and those are forged, he has taken no further step in accordance with law to establish those to be forged. The defendant 15 except examining himself has examined none. He has also offered no such explanation for those rent receipts Ext. 3/a to 3/d and that too specifically with reference to those signatures on Ext.3/a to 3/d, he has not gone to disown.
16. The plaintiff has proved the record of right standing in his favour as also the rent receipts showing payment of rent of that land by the plaintiff after mutation in Mutation Case No. 2583 of 2007. The copy of the receipts issued by him to the defendant showing payment and receipt of rent from June 2007 to November 2007, December 2007 to March 2009, April 2009 and May 2009 have been duly admitted in evidence and marked as Ext.4, 4/a, 4/b and 4/c. Thus so far as denial of the factum of payment of rent by the defendant to the plaintiff , his own oral evidence in denial without any explanation about the signatures upon Exts.4 to 4/c have not inspired the minds of the courts below to eschew Exts. 4/a to 4/d from consideration. This Court on scrutiny does not find any reason to upset the said view of the courts below.
The plaintiff has further proved the registered sale deed Ext. 1, the original agreement between Saraswati and the defendant Ext. 9 as also other agreements between Saraswati and other tenants which the plaintiff asserts to have got after registration of the sale 16 deed being so handed over by said Lohit who was in possession of all those documents. Neither the defendant nor that Lohit have tendered any explanation as regards custody of the document evidencing the creation of tenancy between Lohit and the defendant. The plaintiff has also proved the payment of holding tax. The defendant has proved an unregistered deed Ext.A nomenclatured as deed of licence and its period has been stated to be for ten years. It has been mentioned that he would be paying licence fee of Rs.1,000/- every month.
Above salient features culled out from the rival case and evidence on record are to be kept in mind for being viewed as per the need in the process of deriving the answer to the substantial questions of law.
17. Law relating to derivative title of the landlord (lessor) and challenge, if made, to such title by the tenant (lessee) during subsistence of tenancy in relation to demised property is fairly well settled. Though by virtue of section 116 of the Evidence Act, 1872, the tenant is estopped from challenging the title of his landlord during continuance of the tenancy, yet the tenant/lessee is entitled to challenge the derivative title of an assignee/vendee of the original landlord (lessor) of the demised property in an action brought by the 17 assignee/vendee against the tenant for his eviction from the demised property. This right of a tenant is, however, subject to one caveat that the tenant/lessee has not attorned to the assignee/vendee. In other words, if the tenant/lessee pays rent to the assignee/vendee of the tenanted property then it results in creation of an attornment between the parties which, in turn, deprives the tenant/lessee to challenge the derivative title of an assignee/vendee in the proceedings.
However, once the assignee/vendee proves his title to the demised property, the original tenancy devolves on the assignee/vendee and tenant/lessee by operation of law on the same terms and conditions on which it was entered into with the original landlord/lessor and the same continues till either modified by the parties or is determined by the landlord in accordance with law. It enables the assignee/vendee to acquire the status of "new landlord" in place of the original landlord of the demised premises qua tenant/lessee. (See Law of Evidence by Sarkar, 16th Edn., pp.2106-
108.)
18. Keeping aforementioned principle of law in mind while proceeding to consider their application to the facts and circumstances of the case, indirectly it stands as the need for examination as to whether the findings of the courts below on those crucial issues suffer 18 from any legal infirmity. Needless to say that in that very exercise the substantial question of law would receive its answer.
19. At the cost of some repeatation it may first be stated that the plaintiff has proved the registered sale deed (Ext. 1) by which he has purchased the property of which the suit shop room is a portion. He has proved the record of right (Ext. 2) obtained after getting the land mutated in his name by creation of separate khata; the factum of payment of holding tax in respect of houses standing over the purchased property and the factum of payment of revenue to the State through receipts Ext.6 and Ext.5 respectively. Besides the above, the plaintiff has proved the original agreement of Saraswati and the tenants including that with this defendant which has been marked Ext.9. The plaintiff claims to have been handed over with those documents (Ext. 7 to 9) at the time of registration of the sale deed by Lohit. It is stated that a civil suit has been filed by the Lohit impeaching the said sale deed (Ext. 1) seeking declaration that it is null and void. It is submitted that the said suit though had been dismissed for non-prosecution has now been restored and thus is pending.
As per the settled position of law the legal force of the said sale deed stated to have been executed by Lohit in favour of the 19 plaintiff would be next to nil and thus standing to be dishonoured only when the Civil Court declares it as void. Until then it has to be honoured in every other proceedings and the legal effect of the said sale deed can't remain in abeyance merely for the challenge that it faces in the suit subject to of course any such interim order of said court in that suit in relation to its dealing, enjoyment etc. In that view of the matter, the statutory attornment would take place and continue to have its play till the said sale deed under challenge at the behest of the vendor is declared as null and void by the competent Civil Court. The operation of the legal provision contained in section 109 of the Transfer of Property Act, for that reason of mere challenge cannot be put on hold.
20. It may be looked at from another angle that in the instant case plaintiff claims the relationship of landlord and the tenant by operation of the provision as contained in section 109 of the Transfer of Property Act i.e. the statutory attornment. The very basis of said claim over the suit shop room by the plaintiff is not accepted by the defendant who heavily banks upon the continuance of his old relationship with so called vendor of the plaintiff qua the suit shop room. The title or ownership of so called vendor is not in dispute. 20
For the purpose of the instant suit of the plaintiff, said subsisting legal relationship between the defendant and the so called vendor is sought to be used as sword in thwarting the move of ejectment made by the plaintiff. The suit is for eviction founded upon the relationship of landlord and the tenant as to have been newly created by virtue of the purchase that the plaintiff claims.
It remains no more res integra that the concept of ownership in a landlord-tenant litigation has to be distinguished from the one in a title suit, the ownership indeed is a relative term, the import whereof depends on the context in which it is used. In a litigation of this nature where the title of the so called landlord is denied by the so called tenant, for the purpose the landlord can be said to be the owner if he is entitled for his legal right, as distinguished from for and on behalf of someone else, to evict the tenant and then to retain control, hold and use the premises for himself. What may suffice and hold good as proof of ownership in landlord-tenant litigation probably may or may not be enough to successfully sustain a claim for ownership in a title suit.
So in answering the suit, the above settled position also needs to be viewed.
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21. In the instant case, the courts below have recorded concurrent findings of fact that such sale deed has been duly proved by the plaintiff. Admittedly, this is a proceeding where the court is not called upon to conclusively decide the title in respect of the property as per the rival case advanced by the plaintiff and his vendor since the defendant does not claim title but disputes that of the plaintiff in further setting up with his landlord namely, Lohit who is the vendor of the plaintiff. The defendant has given no such evidence to counter the evidence of purchase let in by the plaintiff. The present suit is for eviction of the defendant who was admittedly the tenant under the vendor of the plaintiff. That deed of License Ext.A has no such legal impact in this suit in view of the provision of section 59 of the Indian Easement Act and the plaintiff is not bound by the same. That relationship of licenser-licensee between Lohit and the defendant gets pushed to oblivion in the eye of law after the sale. This Court finds no such perversity in arriving at such decision in view of the overwhelming oral as well as documentary evidence in support of the said fact coupled with other circumstances as regards the acceptance of other persons remaining as tenants in occupation of other rooms standing over the suit land in a row with the suit shop room and in one building.
22
In that view of the matter, so far as the present suit is concerned, the attornment by operation of law squarely comes into play and the original tenancy can be said to have devolved upon the plaintiff-assignee/vendee and defendant- tenant/lessee by operation of law on the same terms and conditions on which it was entered into with the original landlord/lessor and continued. So the plaintiff can be said to have acquired the status of the 'new landlord' in place of the original landlord of the suit shop room qua defendant-tenant/lessee. The defendant cannot take the advantage of the pendency of the dispute between the plaintiff and his vendor raised at the behest of his said vendor in saying that there has been no passing of title of the suit property in favour of the plaintiff by the said registered sale deed. However, in case the vendor of the plaintiff succeeds, the old position would get restored and the benefits etc. so derived by the purchaser would accordingly get worked out between them where the defendant would be having nothing to do that too in the absence of any interim order in that suit.
22. Be that as it may, more importantly in the instant case both the courts below have recorded a factual finding that the defendant had paid the rent from June 2007 onwards till May 2009 to the plaintiff. Such concurrent finding of fact is seen to be based upon 23 appreciation of evidence let in by the plaintiff which have gone totally unexplained and un-countered by the defendant barring his bald statement that those receipts containing the signatures of the parties are forged. It is not shown that the courts below in recording said finding have either taken inadmissible evidence into consideration, nor it has been placed that some important evidence on record on that score have been overlooked which if would have been taken into account the evidence let in by the plaintiff in support of the payment of the rent by the defendant to him would have been taken to have been demolished followed by the finding that the defendant has never paid any rent in respect of the suit shop room to the plaintiff at any point of time. With the finding on the score of payment of the rent by the defendant to the plaintiff as a tenant in occupation of the suit shop room remaining undisturbed, it clearly also makes out a case of attornment on the part of the defendant. The courts below though are seen to have not proceeded in the run to disucss the matter step by step after clear demarcation and have thus on the way faced some difficulty yet they are found to have arrived at the right destination at the end in crossing the 'V' mark by returning the answer in decreeing the suit granting the reliefs as prayed for.
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23. Let us at this point again turn around to examine the matter from the defence point of view in order to test the sustainability of the decree for ejectment.
The document relied upon by the defendants for the purpose of proving continuance of the relationship with that Lohit, the vendor of the plaintiff qua the suit shop room has been admitted in the evidence and marked as Ext.A. Not only the document has been momenclatured as licence but also on acceptance of the contents in entirety, it is not found to be a deed of lease creating the tenancy in favour of the defendant. Moreover when the period is stated to be 10 years, it is again seen to be an un-registered which is in contravention of the provision of section 107 of the T.P.Act.
24. At this juncture, it would be useful to refer to the statutory provisions at play in the instant case, which are Sections 106 and 107 of the Act, which read as under :
"106. Duration of certain leases in absence of written contract or local usage:- 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 expiring with the end of a year of tenancy; and a lease of immovable property for any other purpose 25 shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days' notice expiring with the end of a month of tenancy.
Every notice under this section must be in writing signed by or on behalf of the person giving it and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants, at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.
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 yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession."26
25. A perusal of Section 106 of the Act makes it clear that it creates a deemed monthly tenancy in those cases where there is no express contract to the contrary, which is terminable at a notice period of 15 days. The section also lays down the requirements of a valid notice to terminate the tenancy, such as that it must be in writing, signed by the person sending it and be duly delivered. Admittedly, the validity of the notice itself is not under challenge. The main contention advanced on behalf of the respondents is that the impugned judgment and order is valid in light of the second part of Section 107 of the Act, which requires that lease for a term exceeding one year can only be made by way of a registered instrument.
26. It is also the well-settled position of law that in the absence of a registered instrument, the courts are not precluded from determining the factum of tenancy from the other evidence on record as well as the conduct of the parties. A three-Judge Bench of the Apex Court in Anthony v. K.C.Ittoop & Sons, (2000) 6 SCC 394, has held as under:
"12........A lease of immovable property is defined in Section 105 of the T.P.Act. A transfer of a right to enjoy a property in consideration of a price paid or promised to be rendered periodically or on specified occasions is the basic fabric for a valid lease. The provision says that such a transfer can be made 27 expressly or by implication. Once there is such a transfer or right to enjoy the property, a lease stands created. What is mentioned in the three paragraphs of the first part of Section 107 of the T.P.Act are only the different modes of how leases are created. The first paragraph has been extracted above and it deals with the mode of creating the particular kinds of leases mentioned therein. The third paragraph can be read along with the above as it contains a condition to be complied with if the parties choose to crease a lease as per a registered instrument mentioned therein. All other leases, if created, necessarily fall within the ambit of the second paragraph. Thus, dehors the instrument parties can create a lease as envisaged in the second paragraph of Section 107 which reads thus.......
13. When lease is a transfer of a right to enjoy the property and such transfer can be made expressly or by implication, the mere fact that an unregistered instrument came into existence would not stand in the way of the court to determine whether there was in fact a lease otherwise than through such deed.
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16. Taking a different view would be contrary to the reality when parties clearly intended to create a lease though the document which they executed had not gone into the processes of registration. That lacuna had affected the validity of the document, but what had happened between the parties in respect of the property 28 became a reality. Non-registration of the document had caused only two consequences. One is that no lease exceeding one year was created. Second is that the instrument became useless so far as creation of the lease is concerned. Nonetheless the presumption that a lease not exceeding one year stood created by conduct of parties remains unrebutted."
Thus, in the absence of registration of a document, what is deemed to be created is a month-to-month tenancy, the termination of which is governed by Section 106 of the Act.
27. Taking an overall view, this Ext.A being taken as a licence; the relationship between Lohit and defendant is that of licensor and the licensee coming into existence and in continuance at the time of sale, upon transfer of the land and house to the plaintiff by the grantor of said licence i.e. Lohit, the plaintiff being the transferee is not bound by the licence. The law on the score is provided in Section 59 of the Indian Easementary Act, 1982. The only exception is to the case of irrevocable licence which is admittedly not the case. So the defendant being the licensee and the plaintiff coming to stand as a transferee from the original licensor, regard being had to the provision of section 59 of the Act, it is to be said that the licence has ceased to exist by operation of law. This paves the way for the plaintiff to sue for ejectment of the 29 defendant by receiving an answer under due process of law. The very purpose of provision of section 59 of the Act is to avoid the interference with the right of the revocation as confined to grantor personally. This of course is subject to the provision of section 60 of the Act, which speaks of the types of licenses which are not revocable. In case of irrevocable licence, the provision of section 59 does not come to the aid of the transferee from the original licensor of the said irrevocable licence. So for the licensee to thwart the process of ejectment, the only legal blockade that the licensee can put by pleading and proving the licence as irrevocable i.e; the licence being coupled with the transfer of property; the transfer remaining in force or that the licensee having acted upon the licence has executed the work of permanent character by incurring expenditure for the execution. In that event, the transfer made by the original licensee does not extinguish the irrevocable licence which takes place in case of revocable licence. In the absence of said defence even being set up by the defendant to bulldoze the move of ejectment by the plaintiff, the defendant in the case has thus not laid the legal foundation for creating the blockade much less to say has put up the blockade to prevent the flow of the suit for proceeding to culminate with a decree for ejectment.
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The plaintiff thus having established the case for the reliefs as prayed for which have been so granted, the defendant has not been able to thwart said grant both on fact and law. The defences so taken in the suit thus fall flat.
All the aforesaid discussion and reasons accordingly provide the answer to the substantial question of law which runs in favour of the plaintiff and against the defence.
28. Resultantly, the RSA stands dismissed with cost.
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D. Dash, J.
Orissa High Court, Cuttack, Dated 20th the day of June., 2017/Aswini