PANNA LAL Vs. SHARAFAT ALI

JUDGEMENT

(1.) THIS is a plaintiff's second appeal against the judgment and decree dated 9th of September, 1970, passed by the Addl. Civil Judge, Farrukhabad. The fact giving rise to this appeal can briefly be stated as under : - The plaintiff-appellant is the owner landlord of the accommodation in suit, which was in the shape of a Khandhar. The respondent was a tenant thereof on a rental of Rs.20/- per mensem. Since the respondent fell in arrears of rent, his tenancy was terminated by a notice under section 106 of the Transfer of Property Act and a suit was filed for his eviction and for recovery of rent and damages. According to the plaintiff-appellant, U. P. Act No.III of 1947 did not apply to the premises in suit because it did not constitute in an 'accommodation' within the meaning of section 2 of that Act. In the written statement filed by the respondent, he denied that he was a tenant of the premises in suit. The plea taken by him, on the contrary, was that he was a licence vide agreement dated 2nd of April, 1968 and that in pursuance of that agreement he had raised permanent constructions after incurring an expenditure of Rs.500/-. The respondent pleaded that, in view of the clear terms contained in the document dated 2.4.1968, the appellant was neither to terminate his licence nor was he entitled to any arrears of rent. It may, however, be mentioned here that later on, in the statement under order 10, rule 2 C.P.C., the appellant conceded that he was a tenant. The trial court decreed the plaintiff's suit for ejectment but dismissed it in so far as the other relief were concerned. Aggrieved against that judgment and decree, the defendant filed an appeal in the court of the District Judge, Farrukhabad. The learned Additional Civil Judge Farrukhabad who heard the appeal, came to the conclusion that the agreement dated 2nd of April, 1968 was binding between the parties and, consequently, the appellant was neither entitled to a decree for ejectment nor for arrears of rent. The lower appellate court, accordingly, dismissed the plaintiff's suit in toto. It is against that judgment and decree that the present appeal is directed. A perusal of the plaint would show that for purposes of his case the appellant relied on the lease deed dated 1st of March, 1968 and not on the lease deed dated 2nd of April 1968. The lower appellate Court has relied upon the lease-deed dated 2nd of April, 1968 in order to dismiss the plaintiff's suit. In the opinion of the lower appellate Court, by the execution of the agreement dated 2nd of April, 1968, the original contract of tenancy entered into between the parties by the lease-deed dated 1st of March, 1968 stood recinded. On a perusal of the lease-deed dated 2nd of April, 1968, however, I find that the stipulation between the parties there under was that the respondent shall construct a room and shall install a flour mill therein and that the entire expenditure incurred thereon was to be adjusted against rent. It was further stipulated that so long the flour mill shall run the appellant will not be entitled either to enhance the rent or to determine the tenancy. On this stipulation it is apparent that the lease deed was for a period exceeding one year. Accordingly to Section 107 of the Transfer of Property Act, a lease- deed for more than one year cannot be made except by a registered document. It is settled that an unregistered lease-deed can be looked into in order to find out the nature of possession of a person in occupation of a premises in question of but it cannot be read in evidence and form the basis of conclusion that the relationship of landlord and tenant exists between the parties, see Arshad Ali Khan v. State U. P. 1978 (4) A.L.R. 113 = A. I. R. 1978 Alld. 59. Consequently, there is not an iota of doubt that the lower appellate court committed a grave error in relying on the document dated 2nd of April, 1968 to hold that the relationship of landlord and tenant existed between the parties and that, in view, of the terms and conditions of that document, the appellant was neither entitled to terminate the respondent's tenancy nor was he entitled to any rent. Learned counsel for the respondent urged that, if the document dated 2nd of April, 1968, was inadmissible for want of registration and could not be looked into to accept the relationship of landlord and tenant between the parties, the document dated 1st of March, 1968 which forms the basis of the suit, could as well not be looked into. Reliance for this argument is also placed on section 107 of the Transfer of Property Act. Accordingly to that provision of law, a lease of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument and in no other manner. As for other types of leases of immovable property, it is open to a person either to make it by oral agreement accompanied by delivery of possession or by a document in writing. For the latter mode it is necessary that the document shall be registered. In other words, if the parties enter into an agreement of lease, for a period of less than one year through a document in writing and that document is not registered, the same consequence would follow as in the case of an unregistered lease for a period of more than one year. I am fortified in taking this view by the observations made in the case of Rai Narain Dass v. Smt. Zubaida Kkatoon I. R. 1972 Alld. 494. I accordingly accept the contention raised on behalf of the respondent that, since, according to the plaint, the contract of tenancy between the parties took place by the document dated 1st of March, 1968 and that document was not got registered, it failed to establish the relationship of landlord and tenant. Learned counsel for the appellant then contended that, even assuming that the document dated 1st of March, 1968 failed to establish the relationship of landlord and tenant between the parties the least that can be inferred on the basis thereof is that the possession of the respondent over the premises in suit was permissive possession, viz. that of a licencee. Learned counsel urged that when suit is filed on the basis of relationship of landlord and tenant, and the contract of tenancy is not established, and instead it is found that the defendant was a mere licencee, a decree for eviction can be passed against the defendant on the basis of the plaintiff's title. Reliance for this argument was placed by the learned counsel for the appellant on Satya Vir Singh v. Kewal Ram 1977 A.W.C. 550, Rama Shankar v. Noor Mohammad 1976 A.L.J. 748 and Bhagwati Prasad v. Chandra Maul A.I.R. 1966 S.C. 735. On a perusal of the aforesaid decisions I find that the observations contained therein do lend support to the contention raised by the learned counsel for the appellant. In the instant case the plaintiff came to court on the allegations that he was the owner of the accommodation in suit. The defendant respondent accepted that the plaintiff-appellant was the owner of the accommodation in suit. The only plea raised by him in the written state ment was that he was a licencee and not a tenant and that in any,case, because of the agreement dated 2nd of April, 1968, the plaintiff-appellant" could not evict him. Thus the fact that the plaintiff-appellant was the owner of the accommodation in suit was not controverted at any stage. Consequently, a decree for the eviction of the respondent can be passed on the basis of the title of the plaintiff-appellant. One thing, however, deserves notice in this connection. It was the admitted case of the parties that after the respondent had been taken the premises from the appellant, he made some constructions therein. Accordingly to the finding recorded by the trial court, the respondent was entitled to an adjustment of Rs.2921- in connection with the constructions made by him. Learned counsel for the appellant made a statement before me that he is prepared to allow adjustment of the aforesaid amount or pay it to the respondent. In the result, therefore, this appeal is allowed, the judgment and decree passed by the courts below are set aside and the plaintiff's suit is decreed subject to the plaintiff-appellant paying to the respondent an amount of Rs.292/- which he is entitled to get as compensation for the constructions made by him. It will be open to the appellant to deposit this amount in the trial court payment to the defendant- respondent. In the circumstances of the case no order is made as to costs.