TMI Blog2007 (5) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... t in perpetuity. The right of the lessor to resume the land by giving a month's notice, is unconditional at the absolute will and discretion of the lessor, whenever he desires. The learned Counsel for appellant submitted that courts have taken the view that existence of a mere provision for forfeiture for non-payment of rent or other specified breach, in a deed granting permanent lease, will not make the lease non- permanent. Such line of decisions, may not assist the appellant as a provision for determination of the lease for a specified breach, is in no way comparable to reservation of an absolute right to resume at will without assigning any reason, in a lease without consideration. We, therefore, affirm the finding that Ex.P1 is not a lease in perpetuity. We, however, desist from examining the further question whether the lease itself was invalid for want of consideration, as such a contention was not raised in the written statement nor urged before the trial court or High Court. (ii) Whether the plaintiff's father did not secure any manner of right, title or interest in the suit property, as the sale certificate in his favour was not followed by a registered de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alf by establishing that structures were lawfully put up with the permission of the lessor and the nature and extent of such structures. But no such request was made for arbitration. No such relief is claimed in the plaint. At all events by 1987, there was no surviving claim for compensation and no request could even be made for reference to arbitration. The plaintiff - appellant is not therefore entitled to any relief. Conclusion - Though the judgment of the High Court may be erroneous in regard to certain issues of fact, we find that the final decision of the High Court to dismiss the suit was correct and just and does not call for interference. We, therefore, affirm the decision of the High Court dismissing the suit. The appeal is, accordingly, dismissed. Parties to bear their respective costs. - R.V. RaveendranClick here to see Judge Analytics and L.S. PantaClick here to see Judge Analytics, JJ. For Appellant: B.S. Banthia, Adv For Respondents: Krishan Mahajan, S. Wasim A. Qadri, Alka Sharma and B.V. Balaram Das, Advs. JUDGMENT R.V. Raveendran, 1. This is an appeal by special leave against the judgment and decree dated 10.7.2001 in RFA No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed the suit (OS No. 10653/1987) on 21.8.1987 for the following reliefs: (a) for a declaration that he was the absolute owner of the suit property; (b) for a direction to the defendants to deliver back possession of the suit property to him; and (c) for mesne profits, costs and other appropriate reliefs. 3. The suit was resisted by the Defendants-Respondents. They contended that S. Giridharilal Son was only a lessee and therefore, plaintiff even if he was the successor-in-interest could under no circumstances, claim absolute ownership. It was also alleged that they had taken action for resumption of the leased land for contravention of the terms of lease (construction of unauthorized structures and failure to notify the lessor about transfer of the leasehold rights) and the suit land was surrendered without protest. The allegation of forcible dispossession in September, 1975 was denied. It was also contended that the only relief sought by the plaintiff in his several representations and letters, in respect of the resumption of the leased land, was compensation for the structures; that the claim was not entertained as the structures were unauthorized; and that if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or and without the consent of the lessor. There was no notice to the lessor in regard to the sale of leasehold right nor consent for such auction sale. Therefore, the transfer of leasehold interest was void, even though it was a court sale. (d) The possession of plaintiff's father and later that of plaintiff was no better than that of a trespasser as there was no valid transfer. (e) As plaintiff had failed to prove title or leasehold interest, he was not entitled to recover possession on the basis of possessory title. Nor was he entitled to restitution of possession, on the facts of the case. 6. The appellant has challenged the said judgment and decree of the High Court. He contends that the findings recorded by the High Court are erroneous and contrary to the evidence and therefore, the judgment of the High Court is liable to be set aside. The contentions of appellant gives rise to the following points for consideration: (i) Whether the lease under deed - Ex.P1 dated 30.9.1921, is a perpetual lease. (ii) Whether the plaintiff's father did not secure any manner of right, title or interest in the suit property, as the sale certificate in his favour was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such intended transfer was not given or if such transfer was made after the same has been vetoed, the transfer shall be void. Condition V provides that every person, on whom the lessee's interest in the land or the buildings erected on the land may devolve by transfer, by succession or by operation of law, shall send to the lessor within one month from the date of such devolution, a report in writing of that fact together with such particulars as may be required. Condition VII provides that so long as the lessee observes the conditions to be observed by him, he may subject to condition IX, hold the land for ever without interruption. Condition IX provides that the lessor may resume the land or any portion thereof at any time after giving one month's notice in writing and on payment of compensation for the buildings erected on the land, upon proper authority; and if there is any dispute as to the amount of such compensation, the same shall be referred to a Committee of Arbitration and the lessee shall be bound by the decision of such Committee of Arbitration. 9. To decide the duration of the lease, the deed has to be read as a whole. The deed dated 30.9.1921 does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the court and the bid is accepted and the sale is confirmed by the court in favour of the purchaser, the sale becomes absolute and the title vests in the purchaser. A sale certificate is issued to the purchaser only when the sale becomes absolute. The sale certificate is merely the evidence of such title. It is well settled that when an auction purchaser derives title on confirmation of sale in his favour, and a sale certificate is issued evidencing such sale and title, no further deed of transfer from the court is contemplated or required. In this case, the sale certificate itself was registered, though such a sale certificate issued by a court or an officer authorized by the court, does not require registration. Section 17(2)(xii) of the Registration Act, 1908 specifically provides that a certificate of sale granted to any purchaser of any property sold by a public auction by a civil or revenue officer does not fall under the category of non testamentary documents which require registration under Sub-section (b) and (c) of Section 17(1) of the said Act. We therefore hold that the High Court committed a serious error in holding that the sale certificate did not convey any right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PW1 stated that in September, 1975, fourth defendant forcibly dispossessed him from the suit property without any notice. No other witness was examined to corroborate his testimony. No other evidence was let in to show that he was in possession of the suit property in September, 1975 or that he was illegally dispossessed. In his cross-examination, he admitted that he was never in personal possession and that his tenant was in possession. There was also no evidence in regard to the measurement of the alleged structures. The evidence of plaintiff shows that neither he nor his alleged tenant gave any complaint regarding the forcible dispossession. In fact, no document was produced to show that any tenant of plaintiff was in possession in 1975. The documentary evidence produced by the plaintiff himself, however, tell a different story regarding dispossession. 14. Ex.P10 dated 6.3.1976 is a letter from plaintiff to fourth defendant. In that letter, he makes a vague allegation that the defendants were trying to commit acts of trespass and take forcible possession of the property. The said letter was sent nearly six months after September 1975. If he had already been dispossessed from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in September, 1975. 17. Significantly, in the notice dated 8.5.1984 (Exhibit P.40) sent through counsel under Section 80 CPC, the plaintiff for the first time alleged that in the year 1975 the military authorities unauthorizedly and illegally and forcibly dispossessed him from the property. The month or date of alleged dispossession is not mentioned. The subsequent notice dated 13.4.1987 (Exhibit P.42) makes an improvement as it is alleged therein that the forcible dispossession was in the year September, 1975. This was reiterated in the plaint. But the detailed correspondence consisting of several letters and representations by Plaintiff from 1976 to 1981 do not refer to forcible dispossession but, on the other hand, refers to resumption of possession by the Defence Department in terms of the lease and to the claim of plaintiff for payment of compensation for the structures. It is, therefore, clear that the case of plaintiff that he was forcibly dispossessed from the suit land in September, 1975 is an afterthought to grab defence land. As plaintiff has failed to prove forcible dispossession and the documents disclose that the land was resumed in terms of the lease dated 30.9 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
