ANTHONY Vs. KC ITTOP AND SONS

JUDGEMENT

(1.) A dispute which constantly caused many litigations to prolong in the past (whether a lease could be made by an unregistered instrument when such deed is compulsorily registrable) has once again been raised and that dispute has lengthened the longevity of this litigation through a chequered career. The successor of the party who was mainly responsible for not registering the instrument has now been benefitted of it as the impugned judgment gave a decree for eviction of the person who was admittedly inducted into possession of the building by the former. Though appellant claimed protection under the provisions of the Rent Control legislation the High Court discountenanced it on the premise that the document executed by the parties regarding the transaction is void under law. The simple question now is whether appellant can claim protection as a tenant under Kerala Buildings (Lease and Rent Control) Act, 1965 (for short the Rent Act).

(2.) Facts, mostly undisputed, are the following : The building which is the subject-matter of this litigation is described as a shed which originally belonged to a family the senior member of which inducted the appellant in possession thereof as per a lease deed dated 4-1-1974 which was ostensibly meant for a period of five years. The monthly rent of the building has been fixed at Rs. 140/-. Appellant paid rent of the building at the said rate till October, 1974. Sometime during this period ownership of the building happened to be allotted to a female member of the family (Devaki) as per a partition effected between its members. Thereafter rent of the building was paid by the appellant to the aforesaid Devaki. Subsequently ownership of the building was transferred by Devaki to the respondent who filed the suit as plaintiff (for the sake of convenience respondent can be referred to as "the plaintiff"). The trial Court decreed the suit by repelling the contention of the appellant that the suit was not maintainable as he is protected from eviction under the provisions of the Rent Act. The trial Court found that the appellant is not a tenant as the lease was void on account of non-registration of the lease-deed. In the first appeal filed by the appellant a District Judge held that in spite of non-registration of the instrument there was a valid tenancy of the building and hence appellant could not be evicted except in accordance with the provisions of the Rent Act.

(3.) In a second appeal filed by the respondent a single Judge of the High Court of Kerala set aside the judgment of the District Court and remanded the first appeal to that Court by holding that the plaintiff was inducted into possession under a void lease and hence the Court should consider "whether, independent of this lease the defendant was in possession as a lessee from month to month". Learned single Judge pointed out that since it is a question of fact the same has to be decided on the evidence on record. After the remand the District Court entered upon a finding that despite the defect of non-registration of the instrument "the facts and circumstances of this case and the evidence discussed above could clearly show that the parties intended to create a lease". The District Judge further held that appellant is the tenant as defined in the Rent Act and hence the plaintiff is not entitled to a decree in this case and his remedy is to apply before the Rent Control Court.