MAJITHA BEEVI Vs. ABDUL VAHAB

JUDGEMENT

(1.) THE suit O.S.No.87/2004 was filed by the appellants herein against the respondents herein. After transfer of O.S.No.87/2004 which was pending before the Munsiff's Court, Nedumangad, it was re -numbered in the court of the Munsiff, Thiruvananthapuram as O.S.No.1545/2005. In that suit a counter claim was filed by the respondents herein against the appellants herein. The suit was dismissed for default. The counter claim alone was proceeded with. The trial court granted a decree in favour of the respondents, who are the plaintiffs in the counter claim and against the appellants herein directing the appellants herein to surrender vacant possession of the house building, shown in the schedule to the counter claim, to the respondents herein. That was confirmed in appeal by the learned Addl. District Judge.

(2.) IN this RSA, the learned counsel for the appellants submits that the courts below went wrong in holding that the plea of tenancy set up by the appellants are unsustainable since they had sought for partition of the plaint schedule building. Since the right available to a tenant under the BRC Act is a statutory right even if an alternate contention was raised by the appellants that will not estop the appellants from pursuing their remedy under the statute.

(3.) EXT .A35 is the lease deed which is pressed into service by the appellants to contend that their mother had tenancy right over the suit building. It was in respect of the suit building and the appurtenant land measuring a total of about 5 cents a suit for partition was filed by the appellants contending that their mother had right over the said property. That was found against. Much has been argued by the learned counsel for the appellants that, as can be seen from paragraph 9 of the written statement, the fact that the lease deed (Ext.A35) was not in serious dispute but the courts below failed to rely upon Ext.A35 on the ground that it was an unregistered document. It is not in dispute that going by the recital in Ext.A35, it creates a lease in perpetuity and if that be so, the lease deed should have been registered. It cannot be admitted in evidence as it was not registered, in view of the embargo contained in Sec.49 of the Registration Act.