ABDUL KADIR Vs. NOOR MOHAMMED SAIT

JUDGEMENT

(1.) The second appeal is by the defendant tenant in a suit for recovery of land on the basis of a Coolicharth, which has been decreed concurrently by both the courts below and the only two questions are: (1) whether the Coolicharth is not admissible in evidence for want of registration; and (11) whether the plaintiff landlord is not entitled to recover enhanced rent on the basis of an oral agreement between the parties subsequent to Coolicharth.

(2.) The Coolicharth in question is Ext A dated 5-7-1120. It was executed by the defendant in favour of the plaintiff and provided for payment of Rs. 120 annually at the rate of Rs. 10 per mensum towards rent for the site covered by it and taken by the defendant for his trade purposes The payment of an advance of three months rent amounting to Rs. 30 was then received. The defendant finally undertook that on demand at any time he would dismantle the Chappura erected on the site by his predecessors and give vacant possession. The question of non admissibility of Ext A in evidence was raised by the defendant in the court below on two grounds, first that Ext A must be taken to reserve an yearly rent within the meaning of the first paragraph of S.104 of the Cochin Transfer of Property Act, 17 of 1111 corresponding to S.107 of the Indian Act, and so had to be registered, and secondly and assuming that was not right, it was necessarily other lease by an instrument falling within the second paragraph of S.107 but again not registered as it should be.

(3.) The court below got over the first ground by finding that the intention of the parties under Ext. A was only to fix a monthly rent even though there was a statement as to the annual rent and this was particularly so because the lease was terminable at the option of the lessor. This ground had not been persisted in before us. So we will say nothing more about it. In respect of the second ground the court below preferred to hold that Ext A was not compulsorily registrable merely because it evidenced a lease which did not come under the scope of Para.1 of S.107. Learned counsel for the appellant urges before us that the court below had in this matter rather misled itself by omitting to notice the amendment of the Cochin Registration Act V of 1084 in terms corresponding to the amendment to S.49 of the Indian Registration Act in 1929. Learned counsel is right. But then the whole question was irrelevant. For Ext A, executed as it was by the lessee alone, did not constitute a lease at all within the meaning of either Para.1 or 2 to S.104 particularly in view to the third paragraph to that section framed on the same lines as the corresponding Para.3 in S.107 of the Indian Act: