PANDIT RAM CHANDER Vs. PANDIT MAHARAJ KUNWAR

JUDGEMENT

(1.) This is a plaintiff's appeal and arises out of a suit in which the plaintiff prayed that (a) a perpetual injunction may be issued to defendants 1 and 2 restraining them from doing anything towards the demolition of the house and from doing anything as might interfere with the plaintiff's rights as lessee; Laid at Rs. 25; (b) defendants 1 and 2 may be ordered to restore the demolished portion of the house to its original condition, otherwise, it may be caused to be reconstructed at the expense of defendants 1 and 2 through the Court Amin. In case defend, ants 1 and 2 do not pay the cost of construction, the house may be restored to its original condition at the expense of the plaintiff and the amount spent may be awarded to the plaintiff against defendants 1 and 2. This second appeal has been referred to a Bench by a learned Single Judge in this Court and is in his opinion one in which an important question of law was involved. On 8 August 1931, Brij Lal sold a house to the defendant Maharaj Kunwar in discharge of his liability under two decrees obtained by Maharaj Kunwar on the basis of two mortgage deeds. The price of the house was fixed at Rs. 8400. The amount due under the mortgages was Rs. 4762. Out of the sale consideration, the aforementioned mortgages were paid off and the balance of the sale price was paid in discharge of a debt to one Babu Ram. The sum of Rs. 35 was paid in cash to the vendor. During the pendency of the suits, in which the aforementioned mortgage decrees were obtained, Brij Lal executed a lease for the period of 11 years on 30th November, in favour of the plaintiff-appellant. This lease was duly registered and the appellant executed a registered qabuliat. The lease however was not signed by both the lessor and the lessee in accordance with the provisions of Section 107, T.P. Act. Nevertheless, although the lease was thus invalid the appellant Ram Chander obtained possession of the subjects leased and he is still in possession thereof. The suit out of which this appeal arises was instituted when Maharaj Kunwar demolished part of the roof of the said house. It is alleged by the plaintiff that Maharaj Kunwar acting in collusion with the Municipal Board of Moradabad induced the Board to issue an order for the demolition of that part of the house which was occupied by the plaintiff on the ground that the building was dangerous.

(2.) The trial Court dismissed the suit on the ground that it was barred under Section 52, T.P. Act. The lower Appellate Court has upheld the decision of the learned Munsif upon the additional ground that the lease granted to the plaintiff was invalid in view of the provisions of Section 107, T.P. Act. The lease was not signed by both parties in accordance with the provisions of the latter Section. We may dispose briefly of the contention that the suit must fail because of the provisions of Section 52, T.P. Act. It is true that the lease in favour of the appellant was executed while the suits on the basis of the mortgages in favour of Maharaj Kunwar were pending. The sale of the property mortgaged to the mortgagee howover was a private sale, and furthermore, the entire decretal amounts under both decrees were paid out of the sale consideration. In those circumstances it cannot be maintained that the lease of 30 November 1980 executed by Brij Lal in favour of the appellant is invalid under the provisions of Section 52 inasmuch as the execution of that lease did not affect the rights of any party to the suits upon the basis of the mortgages in favour of Maharaj Kunwar.

(3.) The main contest in this appeal centred round the interpretation of Section 53-A, T.P. Act. It was contended on the one hand for the appellant that having obtained possession in terms of the lease executed in his favour, being in possession and being willing himself to perform his part of the contract of lease though the lease was not signed by both parties the respondents were not entitled to eject him by a process of law or otherwise. For the respondents, upon the other hand, it was contended that the appellant could take the plea based upon Section 53-A, T.P. Act, only in defence to a suit to eject him or to any interference with the enjoyment of his rights under the lease which was held to be invalid. He was not entitled, it was maintained, to bring a suit upon the basis of the lease and claim an order that he be left in undisturbed possession of the property leased to him; in other words, that whilst the benefits of Section 53-A, T.P. Act, were open to him if he were a defendant they could not be extended to him in a case in which he was a plaintiff. Section 53-A refers to the case of a contract by a transfer effected by a written document which has either not been registered or has not been completed in accordance with the law. In regard to such transactions the Section enjoins then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract.