GANGAYYA Vs. S MANDAN CHAND SAMDARIA

JUDGEMENT

(1.) THESE two second appeals have been filed two separate defendants. The respondents herein are the plaintiffs in the suit. The suit was filed for recovery of possession after removing the superstructure and for costs. It was the case of the plaintiffs that the defendants-appellants were the tenants of two separate portions of the suit land on a monthly rent of Rs. 4/- and that the tenancy was terminated by notice dated 20-10-1964. The defendants pleaded that the tenancy was from 1-4-1955, prior to the coming into force of the Madras City Tenants Protection (Amendment) Act, 1955, and that, therefore, they were entitled to the protection under Section 9 of the Act. The only question therefore before the courts below was whether the tenancy commenced prior to 12-9-1955, on which date the madras City Tenants Protection (Amendment) Act came into force as contended by the defendants or whether the tenancy was created only on and from 1-4-1956 as contended by the plaintiffs.

(2.) THE defendants apart from their oral evidence relied on Ex. B, 19 dated 1-41955 in support of their contention that the tenancy commenced from 1-4-1955 and not from 1-4-1956. Ex. B-19 is a lease deed executed between the first defendant and the power of attorney agent of the predecessor in title of the plaintiffs. This deed is signed by the agent of the lessor alone and it has not been signed by the defendants. It purports to be a lease for a period of three years, but it has not been registered. On the ground that Ex. B-19 is an inchoate or incomplete document and also on the ground of want of registration the courts below have held that the document could not be relied on for any purpose.

(3.) IN this second appeal, the learned counsel for the appellants contended that though Ex. B-19 could not be relied on for the purpose of proving a lease it could be relied on for a collateral purpose of proving the nature and character of the possession of the land in the hands of the defendants and to find out from what date the possession was obtained by the defendants. In my opinion, the learned counsel for the appellants is well-founded in this contention. Under paragraph 3 of section 107 of the Transfer of Property Act, where a lease of an immovable property is made by a registered document, such instrument shall be executed by both the lessor and the lessee. It has been held by a Division Bench of the calcutta High Court in Ram Abatar v. Shanta Bala, that the requirements of Section 107 of Joint execution by the lessor and the lessee applies only to a case where a lease of an immovable property is made by a registered instrument. Apart from this, an instrument signed by the lessor alone or by the lessee alone would operate as an agreement to lease or a rent note. . . . . . . . . . . . . . Vide hari Prasad v. Abdul Huq, Therefore, Ex. B-19 could also be relied on by the lessee as a defense to the action for eviction subject to the other conditions in Section 53-A of the Transfer of Property Act. Even otherwise though ex. B-19 is not admissible for proving the terms of the tenancy, in my opinion, it could be relied on for the purpose of proving the nature and character of possession of the defendants and also the date from which such possession in the hands of the defendants commenced. This view is supported by the ratio of the decision in In re V. Tharavattil Karnavan, That was a case where a raji decree, under which defendants were allowed to be in possession of the properties as permanent tenants subject to a condition that they should not mortgage or assign or otherwise alienate the property, was not registered. The raji decree was therefore held to be inadmissible in evidence. But the learned Chief justice, speaking for the Bench held "though Ex. A-1 (raji decree) was inadmissible for want of registration, it is now well-established that such a document can be looked into for other and collateral purposes particularly to ascertain the nature of possession with a party obtained under that document". In particular, the Bench relied on the date on which the defendants in that case got possession under the raji decree for the purpose of holding that the defendants had perfected the right to permanent lease by adverse possession. The learned judges have considered that the date of the document or the date from which the possession was obtained under an invalid document is a collateral purpose and for finding out the date of commencement of possession the invalid document could be relied on.