RAM SEWAK JAISWAL Vs. ABDUL MAJEED

JUDGEMENT

(1.) This is a plaintiffs second appeal in a suit for ejectment from a house. The plaintiff's case was that Aziz Uddin, who was the father of the three defendants; Abdul Majeed, Abdul Hameed and Abdul Wahid, took the house in suit as a tenant for eleven months on payment of Rs. 5/- per month as rent, under a Sarkhat dated 12th Oct. 1957. The defendants denied the plaintiff's title and claimed that they were occupying the house as licensees under the original owner thereof. They even alleged that although they had come to know from the proceedings in Suit No. 396 of 1964 (Lakhoo v. Sakina Bibi) to which they and the present plaintiff also were parties, Aziz Uddin, had purported to sell the house to the present plaintiff but, according to the defendants, he was not competent to do so as he was a mere licensee. The Sarkhat was also denied and it was contended that at any rate it was inadmissible in evidence for want of registration.

(2.) Several issues were raised in the case. The suit was decreed by the trial court for ejectment and recovery of Rupees 180/- as arrears of rent and damages up to the date of the suit and pendente lite and future at the rate of Rs. 5/- per month. The lower appellate court has, however, dismissed the suit primarily on the ground that the Sarkhat was inadmissible in evidence for any purpose whatsoever and that therefore, the relationship of landlord and tenant not having been proved, the suit was liable to be dismissed.

(3.) It is not necessary to go into all the involved allegations and the contentions raised in the defence, nor is it necessary to notice all the issues raised at the trial. Suffice it to observe that the plaintiff had clearly and categorically pleaded that he was not basing his claim for the defendants' ejectment on the basis of his title to the property but on the relationship of landlord and tenant, about which it was alleged that after the expiry of 11 months period of the Sarkhat. Aziz Uddin had no further right to remain in occupation of the house in suit and that his status was merely that of a tenant holding over, or of a tenant at will, or tenant at sufference, and that the defendants, who had continued to remain in occupation even after Aziz Uddin's death, could claim no higher rights in the house than those of their predecessor, namely, Aziz Uddin. The main question which was accordingly raised before me in the second appeal was about the admissibility and effect of the Sarkhat. Ext. 4, which has been executed by Aziz Uddin alone and is consequently not a lease within the meaning: of Section 107 of the T. P. Act. It is a rent note. Not being a lease, or in other words an instrument by which a lease of immoveable property could be created, in accordance with the requirements of Section 107 of the T. P. Act. for it is not executed by both the lessor and the lessee, it could not be said to be an instrument requiring registration according to the requirements of that provision, for even if it had been registered, it could not have created a lease. The period for which the house was taken according to the terms of the rent note was 11 months and the rent reserved therein was Rs. 5/- per month, it could not accordingly be said to be compulsorily registrable under Section 17 (1) (d) of the Indian Registration Act, 1908, although it could be said to be a lease as defined under clause (7) of Section 2 of that Act. Not being compulsorily regristrable whether under Section 17 of the Indian Registration Act, 1908, or any provision of the T. P. Act. 1882. Section 49 of the Registration Act did not operate to exclude the document from being received as evidence of the transaction of lease, the terms whereof were recorded therein. T am supported in this inference by the following comment, in the VIth Edition of Mulla's T. P. Act which appears to be well supported by the cases noted thereunder:-