SAYED ISMAIL Vs. IMAMBEE AND ORS.

JUDGEMENT

(1.) ALL these appeals are presented by the tenant raising exception to the respective judgments and decree passed in respect of recovery of arrears of rent. In all these appeals, three different suits were instituted by the respondents / landlords claiming recovery of arrears of rent receivable from the tenant / appellants in all the appeals. So far as Second Appeal no. 148/1992 is concerned, respondents / landlord presented Regular Civil Suit no. 167/1974 claiming recovery of rent amounting to Rs. 3150.68 ps. Recovery of rent is claimed for a period preceding three years of presentation of the suit. It is the case of the plaintiffs / respondents herein that the shop premises were let out to the appellant /original defendant / tenant on 19 -10 -1971, initially for a period of about 1 year on monthly rent of Rs. 83.32 ps. Rent note was executed on the same day by plaintiff Imambi w/o Sk. mahtab Saheb. It is contended by landlord that the tenant did not pay the amount of rent for a period of one year i.e. from Diwali of the year 1971 to Diwali of the next year and also for subsequent two years. Yearly rent was prescribed since 26 -11 -1973 at Rs. 1151/ -. Tenant did not pay yearly rent for the year 1973 -1974 also. It is contended that there were documents in the form of rent notes executed by the tenant which are placed on record at exh. 68 and 69. Landlords thus claim that tenant has fallen in arrears of payment of rent for an amount of Rs. 3150.68 ps. Appellant herein / original defendant presented written statement and controverted the contentions raised by plaintiffs / landlords. It is the contention of the tenant that the shop premises were owned by defendant no. 8 Abdul s/o mehtab and he occupied the premises as a tenant of Abdul Rehman and the yearly rent fixed was Rs. 800/ -. It is his contention that he was inducted as tenant in the year 1968 during Diwali festival. He further contends that he made improvements in the property and a sum of Rs. 5,000/ - which was required for repairs was agreed to be adjusted towards arrears of rent. It is thus contended by the tenant that he is not liable to pay amount to the plaintiffs / landlords as contended by them.

(2.) MR . Kadar, learned counsel appearing for the appellants in all the three appeals contended that the courts below have committed a serious error in placing reliance on the un -registered lease deed / rent note and proceeded to pass a decree in respect of recovery of amount against the tenant. It is the contention of the appellant that document exh. 69 i.e. lease deed dt. 26 -10 -1973 is compulsorily registrable and in view of mandate of section 49 of the Registration Act, the document which is required to be registered, if not registered, cannot be received as evidence of any transaction affecting such property or conferring such power. It is the contention of the appellant that the courts below have not taken into consideration the provisions of the Registration Act as well as section 107 of Transfer of Property Act, 1982 and proceeded to pass decree against the tenant. It is contended that part of the claim in Regular Civil Suit no. 167/1974 i.e. in respect of recovery of rent amount for a period between 1971 -1973 is based on rent note exh. 68 which prescribes rate of rent at Rs. 83.32 ps. Landlord in the plaint although claimed rent at Rs. 83.32 ps per month for the aforesaid period, witness no. 1 for the plaintiff, Mohd. Ismail, in his deposition has claimed that the shop was let out for yearly rent of Rs. 1100/ -. Trial court has recorded finding in the judgment that if the arithmetic calculation in respect of yearly rent is considered, it would come to Rs. 75/ - per month and the court has further proceeded to accept the case put up by the plaintiff in respect of monthly rent of Rs. 83,32 ps. Thus, there is discrepancy in the pleadings and the evidence in respect of monthly rent for the years 1971 -1972 and 1972 -1973. So far as rent payable for the year 1973 -1974 is concerned, according to the plaintiffs / landlords, the claim is based on rent note at exh. 69 executed on 26 -10 -1973. According to learned counsel for the appellant, rent note in respect of payment of yearly rent for an amount more than Rs. 1,000/ - is required to be registered in view of provisions of section 107 of Transfer of Property Act. In the instant matter, rent agreement being not as prescribed by section 107 of the Transfer of Property Act or section 17 of the Registration Act, it is not admissible in evidence. It is thus contended that the courts below have committed an error in granting the decree in respect of recovery of rent in favour of the landlords.

(3.) ON consideration of the rival contentions raised by the parties, following substantial questions of law arise for consideration in all the appeals : -