RAJAN Vs. MUHAMMED

JUDGEMENT

(1.) The defeated tenant who has suffered concurrent orders of eviction on the ground under Section 11(4)(1) of Kerala Act 2 of 1965 at the hands of the Rent Control Court and the Appellate Authority is the revision petitioner. The respondent landlord sought eviction on the grounds of arrears of rent and user of the building in such a manner as to reduce the value and utility of the building materially and permanently {Sections 11(2)(b) 11(4)(2)} also. However, since those two grounds no longer survive, in this revision petition we are concerned with the ground of objectionable subletting/transfer only. The allegation of the landlord in the context of the ground of subletting was that contrary to the terms of the lease the tenant has sublet the premises to one Hareendranath and that in spite of statutory notice the tenant did not terminate the sublease. In the first instance the rent control petition was allowed by the Rent Control Court on the ground of subletting. Later, the tenant preferred an appeal to the Appellate Authority and the Appellate Authority remanded the matter to the Rent Control Court for fresh disposal giving opportunity to both sides for adducing further evidence. After remand, the additional evidence adduced by the landlord was Ext.A5 document and the oral testimony of PW-2, who interestingly is none other than the alleged sub-lessee. PW-2 was cited not only for giving oral evidence but also for producing Ext.A5 which is an agreement incorporating the terms of the real arrangement between the revision petitioner, PW-2 and one Santhosh who is son of one Ramachandran who was alleged by the landlord at a later stage to be joint sub-lessee. The defence of the revision petitioner to the case of sub-lease was one of denial. The specific contention was that the revision petitioner himself retained possession of the building and was continuing the business in partnership with PW-2 as evidenced by B9 partnership. On an evaluation of the evidence, the Rent Control Court concluded that the jural relationship between the respondent and PW-2 and the other parties to Ext.A5 agreement, is that of tenant and authorised transferees and accordingly ordered eviction on the ground of subletting. The partnership between the parties as evidenced by Ext.B9 put in defence was found to be a camouflage for covering up the real arrangement of sublease. The Rent Control Appellate Authority on a reappraisal of the evidence concurred with the findings of the Rent Control Court and confirmed the order of eviction.

(2.) Before us Smt. C.G. Preetha, learned Counsel for the revision petitioner would submit that it was placing reliance on Ext.A5 document that the authorities below came to the conclusion that the status of PW-2 is that of a sub-lessee under the revision petitioner. Ext.A5 document, according to her, is a document which should not have been marked in evidence since the same is a compulsorily registrable one. In this context, she referred to Section 17(1)(d) and Section 49 of the Indian Registration Act. A number of authorities were also cited before us by Smt. Preetha in support of the proposition that a document which is compulsorily registrable but not registered should not be received as evidence. Ext.B9 was a valid partnership and she pointed out that it was not in dispute that the terms of that partnership have been implemented. Ext.X-1 file summoned from the Sales Tax Office containing the affidavits submitted by all the three partners of Ext.B9 partnership was also relied on by her to argue that the partnership is a real partnership which exists in law. Strong reliance was placed by her on the judgment of this Court in P.J. Jacob v. T.J. Jacob 1977 KLT 224 and the judgment of the Supreme Court in Girdharbhai v. Saiyed Mohmad Mirasaheb Kadri and she argued that the Supreme Court has gone to the extent of holding that just because the partner who is the tenant of the building in question is not authorised to operate the bank account of the firm it cannot be said that the partnership is not a genuine partnership, but is only a camouflage.

(3.) We have considered the submissions. The argument of the learned counsel for the revision petitioner that a document which is compulsorily registrable, if not registered, cannot be received as evidence of the transaction which by law is required to be registered is founded on Sections 17(1)(d) and 49 of the Registration Act, 1908 which we quote below.