Tax Management India.Com

Home Page

Home List
← Previous Next →

2008 (5) TMI 708

CIVIL APPEAL NOS. 5659-5660 OF 2002 - Dated:- 12-5-2008 - MATHUR, A.K. AND CHATTERJEE, TARUN, JJ. JUDGMENT TARUN CHATTERJEE, J. 1. These two appeals are directed against the common final judgment and order dated 18th of May, 2001 of the High Court of Calcutta passed in F.A. Nos. 39-40 of 1999 affirming the judgment and decree dated 11th of November, 1998 passed by the Asstt. District Judge, 9th Court at Alipore, South 24 Parganas whereby the two suits namely, Title Suit No 19/92 and 39/92 filed at the instance of the appellant were dismissed. 2. The facts leading to the filing of these two appeals are narrated in a nutshell as follows: M/s. K.B. Saha & Sons Pvt. Ltd. (in short "the appellant") brought Title Suit No. 19/92 before the 9th Court of the Asstt. District Judge, Alipore, South 24 Parganas against M/s. Development Consultants Ltd. (in short "the respondent") alleging, inter alia, that the appellant was the owner of Premises No. 28/8, Gariahat Road, within Police Station Lake in the district of South 24 Parganas (hereinafter called "the suit property"). By a memorandum dated 30th of March, 1976, the respondent became a tenant in respect of .....

X X X X X X X

Full Text of the Document

X X X X X X X

ondent to vacate the suit premises as desired in the notice, another suit was filed by the appellant being Title Suit No. 39/95 praying for ejectment of the respondent from the suit premises. The aforesaid suit was brought by the appellant with similar allegations as contained in Title Suit No. 19/92 and it was alleged, inter alia, that although the respondent was bound to vacate the suit premises after Mr. Das had vacated the same, yet the respondent had not vacated the suit premises and, therefore, the appellant was constrained to file the aforesaid suit for eviction of the respondent and damages and consequential relief. The respondent entered appearance and contested both the suits by filing written statements. In the written statements, it was the defence of the respondent that the respondent was in urgent need of rented accommodation for its officer and, therefore, they hurriedly put their signatures on the agreement dated 30th of March, 1976. The respondent further alleged that the tenancy was taken by them for providing residential accommodation to its officer Mr. Keshab Das who was only an officer of the respondent and it was the respondent who was the tenant of the suit p .....

X X X X X X X

Full Text of the Document

X X X X X X X

a perusal of the pleadings of the parties, it is pellucid that the case of the appellant in both the suits was based on the memorandum of lease agreement dated 30th of March, 1976. In this view of the matter, it is expedient to reproduce some of the relevant Clauses in the Tenancy Agreement between the parties before we proceed further with this appeal. Accordingly, the relevant portion of the memorandum dated 30th of March, 1976 is reproduced as under: - "THIS MEMORANDUM OF AGREEMENT made this the 30th day of March, one thousand nine hundred and seventy six BETWEEN M/s. K. B. Saha & Sons (Biri Merchants) Limited, a body corporate registered under the Companies Act, 1956 having its registered office at 28/8, Gariahat Road within P.S. Tollygunge, Calcutta-700 029 within the local limits of Corporation of Calcutta hereinafter called the landlords (which expression unless repugnant to the context shall include its successors and assigns) of the First Part AND DEVELOPMENT CONSULTANTS PRIVATE LTD, a body corporate registered under the Companies Act,1956 having its registered office at present at premises No.24-B, Park street, Calcutta, within P.S. Park Street, Calcutta- 16 here .....

X X X X X X X

Full Text of the Document

X X X X X X X

s follows :- "That the tenant shall vacate and deliver vacant Khas possession of the demised premises unto the landlord on termination or determination of the tenancy with whole of the fittings and effects in as sound, perfect and clear condition as they were at the commencement of the tenancy excepting natural wear and tear". 7. In view of the pleadings of the parties, the following issues were framed by the trial court in Title Suit No.19 of 1992: - 1.Has the plaintiff any cause of action for the suit ? 2.Is the suit maintainable in its present form and in law? 3.Was the suit premises let out by the plaintiff to the defendant for providing accommodation to its particular officer viz. Mr.Keshab Das ? 4.Is the plaintiff entitled to get the decree as prayed for ? 5. To what relief, if any, is the plaintiff entitled ? 8. In Title Suit No.39/95, the following issues were framed: - 1.Is the suit maintainable? 2.Whether the notice of ejectment is valid, legal and sufficient ? If so, was it duly served upon the defendant ? 3.Whether the defendant is a defaulter in payment of rent as alleged ? 4.Whether the defendant has caused damage to the suit premises ? 5.Whether the defenda .....

X X X X X X X

Full Text of the Document

X X X X X X X

he Trial Court, both the suits were dismissed and the High Court on the same lines had affirmed the findings of the trial court and held that no ground was made out by the appellant to evict the respondent from the suit premises. 11. Mr. Somnath Mukherjee, the learned counsel appearing on behalf of the appellant submitted that the lease agreement (Ext.4) creating tenancy from month to month in respect of the suit premises was not compulsorily registerable under Section 107 of the Transfer of Property Act. He also contended that the High Court as well as the trial court were wrong in holding that the lease agreement being an unregistered document cannot be used to establish the provisions made in that agreement that the suit premises was let out to the respondent only for the purpose of occupation of the respondent's named officer Mr. Keshab Das and members of his family and for no other purpose. He further contended that since the lease agreement in question was not required to be registered, the prohibition contained in Section 49 of the Registration Act was not applicable. He also contended in the alternative that even if it was held that the lease agreement in question was c .....

X X X X X X X

Full Text of the Document

X X X X X X X

trument. All other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. Where a lease of immoveable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee. Provided that the State Government may from time to time, by notification in the Official Gazette, direct that leases of immoveable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession. 13. Another section which would also be material for us to decide this appeal is - Section 49 of the Registration Act which runs as under : "Effect of non-registration of documents required to be registered - No document required by Sec.17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882) to be registered shall - (a) affect any immoveable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any tran .....

X X X X X X X

Full Text of the Document

X X X X X X X

in question in favour of the lessee under a registered deed of sale whereas in the instant case, the lease deed was not registered. The High Court has observed that the lease agreement between the parties was in effect an agreement for lease of the suit premises and was unregistered. Relying on Section 49 of the Registration Act, the High Court observed that a document purporting to be a lease and required to be registered under Section 107 of the Transfer of Property Act is not admissible in evidence if it is not registered. Proviso to Section 49, however, provides that although a lease deed falling under the provision of Section 107 of the Transfer of Property Act will not be admissible in evidence if the same is not registered but that deed may be used as evidence of any collateral transaction not required to be effected by a registered instrument. Therefore, the High Court observed that the question to be decided in this appeal is whether the conditions noted in the lease deed could be looked into for determining the question that the tenancy in question would be used only for the purpose of occupation of the named officer of the respondent. 15. Section 49 clearly provides tha .....

X X X X X X X

Full Text of the Document

X X X X X X X

under any circumstances. The lessee died on 16th of December, 1970 and his heirs did not deliver vacant possession in favour of the lessors or their successors in interest and this necessitated filing of the suit for eviction of the defendants. In that decision, the main defence raised in the written statement was that the original lessee Lal Bihari Mulick, having died on 16th of December, 1970, the registered lease dated 11th of July, 1966 shall fall under the category of the West Bengal Premises Tenancy Act and the tenants were residing in the demised premises with the said lessee namely Lal Bihari Mullick during his lifetime became monthly tenants under the plaintiffs of that case by operation of law. In view of the aforesaid facts and considering the fact that the aforesaid decision of this Court was rendered on the basis of a registered lease deed, we are of the view that the said decision is clearly distinguishable from the present case because of the fact that in the present case, there was no registered deed of lease nor was there any such covenant as mentioned hereinabove. Therefore, we do not find any ground to place any reliance on the aforesaid decision of this court. .....

X X X X X X X

Full Text of the Document

X X X X X X X

t to use a document for the purpose of proving an important clause in the lease is not using it as a collateral purpose. Again this court in Rai Chand Jain Vs. Chandra Kanta Khosla [AIR 1991 SC 747] reiterated the above and observed in paragraph 10 as under : - ".......the lease deed Ex. P1 dated 19th May, 1978 executed both by the appellant and the respondent i.e. the landlady and the tenant, Rai Chand Jain, though unregistered can be considered for collateral purposes and as such the findings of the Appellate Authority to the effect that the said deed cannot be used for collateral purposes namely to show that the purpose was to lease out the demised premises for residential purposes of the tenant only is not at all legally correct. It is well settled that unregistered lease executed by both the parties can be looked into for collateral purposes. In the instant case the purpose of the lease is evident from the deed itself which is as follows: "The lessor hereby demises House No. 382, Sector 30-A, Chandigarh, to lessee for residential purposes only". This clearly evinces that the property in question was let out to the tenant for his residence only...." 20. In t .....

X X X X X X X

Full Text of the Document

X X X X X X X

, after the same was vacated by the said officer, the respondent was not entitled to allot it to any other employee and was therefore, liable to be evicted which, in our view, was an important term forming part of the lease agreement. Therefore, such a Clause, namely, Clause 9 of the Lease Agreement in this case, cannot be looked into even for collateral purposes to come to a conclusion that the respondent was liable to be evicted because of violation of Clause 9 of the Lease Agreement. That being the position, we are unable to hold that Clause 9 of the Lease Agreement, which is admittedly unregistered, can be looked into for the purpose of evicting the respondent from the suit premises only because the respondent was not entitled to induct any other person other than the named officer in the same. 23. Before we part with this Judgment, let us deal with another ground, which the High Court had also taken into consideration. This is with regard to the violation of provisions of Section 108 (o) of the Transfer of Property Act. Section 108 (o) clearly provides that the Lessee must not use or permit another to use the property for a purpose other than that for which it was let out or l .....

X X X X X X X

Full Text of the Document

X X X X X X X

cular named officer and for none else and despite this condition, the same is given to some one else, or would it cover and be limited to the cases where property is leased out for a residential or non- residential purpose or for a particular business and despite such express conditions, the property is used for the purpose other than the specified. We are of the view that letting out or leasing out the property for a particular named officer cannot be the purpose' of letting. The purpose of letting out would be residential or non-residential or for a particular business etc. 25. The learned counsel for the appellant placed strong reliance on the decisions of this court in Dashrath Baburao Sangale and others Vs. Kashimath Bhaskar Data [AIR 1993 SC 2646] and M. Arul Jothi and another Vs. Lajja Bal (deceased) and another [AIR 2000 SC 1122] to suggest that the respondent had violated Section 108(o) of the Transfer of Property Act. After carefully examining the aforesaid decisions of this Court, we do not find any support from the said decisions for the purpose of holding that the present case is covered by the expression Change of User' as used in Section 108(o) of the Transfe .....

X X X X X X X

Full Text of the Document

X X X X X X X

 

 

← Previous Next →