BABU JAGTANAND Vs. SATYANARAYANJI

JUDGEMENT

(1.) In the suit out of which this appeal arises the plaintiffs claimed that they had let out the disputed house bearing holding No. 711 of Ward No. 4, Mahal No. 1, situated within the Dinapur Cantonment, to the defendant for a period of one year from the 1st September, 1952, to the 31st August, 1953, at a monthly rent of Rs. 30/- on the basis of a kirayanama dated the 31st August, 1952. As the defendant did not vacate the house fin spite of two registered notices after the expiry of the period of the lease, the plaintiffs instituted the present suit for ejectment of the defendant. The suit was contested by the defendant on the ground that there was no yearly tenancy and he was not liable to be evicted under any of the pro- visions of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947. Both the lower Courts have held that there was a valid lease for a period of one year Created by the kirayanama and the defendant was liable to be evicted after the fixed period of the tenancy in pursuance of the provisions of Section 11 of Bihar Act 3 of 1947. Both the lower Courts have accordingly granted a decree in favour of the plaintiffs for ejectment of the defendant.

(2.) The first argument put forward by the learned Government Advocate on behalf of the defendant-appellant is that the lower appellate Court was wrong in holding that Bihar Act 3 of 1947, before its amendment by Bihar Act 16 of 1955, was unconstitutional and ultra vires. In support of his argument the learned Government Advocate referred to a decision of the Bombay High Court in Darukhanawalla v. Khemchand Lalchand, AIR 1954 Bom 254. It was held in that case by Chagla, C. J. and Shah, J. that a similar provision in Bombay Rents, Hotel and Lodging House Rates Control Act (Bombay Act 5 of 1947) was constitutionally valid and the legislation did not come within the ambit of Entry No. 2 in List I of the Government of India Act, 1935. In our opinion the argument of the learned Government Advocate is well founded and the Bihar Legislature is competent to legislate with regard to control of house accommodation and control of rents even with regard to a cantonment. Entry No. 2 in the Seventh Schedule of the Government of India Act is in the following terms:-

(3.) The next question argued in this case was whether the kirayanama executed on the 31st August, 1952, legally created a valid lease for one year between the parties. It was submitted on behalf of the appellant that the document required registration, and in the absence of registration it cannot be taken into evidence under the provisions of Section 49 of the Registration Act. In our opinion this argument is well founded and must be accepted as correct. Section 107 of the Transfer of Property Act states that a lease of immoveable property from year to year, or for any term exceeding one year, can be made only by a registered instrument and that all other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. In the present case the statement of the plaintiff-respondents is that the lease was created on the basis of the kirayanama dated the 31st August, 1952. It is not the case of the plaintiff-respondents that there was an oral agreement for the lease accompanied by delivery of possession. On the Contrary their specific case is that the lease was created on the basis of a kirayanama dated the 31st August, 1952. In the circumstances it is clear that the document required registration under Section 49 of the Registration Act ,which reads as follows:-