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TMI Blog2019 (4) TMI 1887X X X X Extracts X X X X X X X X Extracts X X X X ..... rust. At this stage, it would be material to note that the property in dispute has by subsequent devolutions vested in the appellant. 5 On 25 May 1981, an indenture of lease was entered into between the appellant and the respondent. The term of the lease was fifteen years. Under the terms of the lease, the respondent took possession of the land. The rent was paid until 19 April 1984. 6 The State of West Bengal initiated proceedings for requisitioning of the land under the West Bengal Lands (Requisition and Acquisition) Act 1948. The appellant challenged the validity of the requisitioning in a Writ Petition before the High Court. The petition was allowed by a judgment dated 25 September 1998 and the order of requisitioning was set aside. The judgment of the Single Judge was questioned in appeal by the respondent. The appeal was dismissed on 16 November 2000. 7 Eventually, a suit for eviction was instituted before the Court of the Civil Judge (Senior Division), Jalpaiguri1. The respondent filed its written statement. The learned trial judge decreed the suit by a judgment and order dated 30 November 2005. The trial court passed a decree for vacant and peaceful possession. A prelimi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of Section 106 stands satisfied; (ii) Since the indenture of lease is an unregistered document, as a consequence of the provisions of Sections 35 and 36 of the Indian Stamp Act 1899 and Sections 17 and 49 of the Registration Act 1908, the contents of the document are inadmissible in evidence to prove the terms of the contract. As a consequence, the presumption under Section 106 would come into operation and the relationship between the parties would be in the nature of a monthly tenancy. The respondent in its written statement categorically admitted that it was in occupation for a period of fifteen years which ended on 24 May 1996. Once this is the position, the position of the respondent would be as a tenant at sufferance, in which event, no notice under Section 106 was necessary; and (iii) After the respondent entered upon the property on 25 May 1981, it was requisitioned by the State Government in pursuance of a request made by the respondent. The respondent stopped paying the rent after 1984. After the Writ Petition was allowed by the learned Single Judge and the order of requisitioning was quashed, the respondent filed an appeal before the Division Bench. In this view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een examined on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866 (20 of 1866), or the Indian Registration Act, 1871 (8 of 1871), or the Indian Registration Act, 1877 (3 of 1877), or this Act came or comes into force, namely- (a) instruments of gift of immovable property; (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property; (c) non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and (d) lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent; (e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... collateral purpose of proving the nature and character of the possession of the defendants. The terms of the lease did not constitute a collateral purpose. Consequently, the unregistered draft lease was held to be inadmissible to create a valid lease for a renewed term of nine years. In this background, this Court held that the defendants were tenants holding over under Section 116 in which event it was necessary for the plaintiff to serve a notice under Section 106. In the absence of such a notice, the suit, it was held, would not be maintainable. 15 Mr Sundaram has sought to distinguish this decision, since in that case this Court found that the defendant was a tenant holding over within the meaning of Section 116. We find merit in the submission which has been urged by Mr Sundaram. In the case before this Court noted above, the defendants had not admitted that the term of the lease was for a period of nine years. This was noted by the Court, as we have extracted earlier. On the contrary, we find that in the present case, there is an express admission on the part of the defendants that they were in occupation under the lease agreement for a period of fifteen years with effect f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ense of retaining possession..."" In Park Street Properties Private Limited v Dipak Kumar Singh(2016) 9 SCC 268, the appellant to whom premises had been let out with a right to sub-let them entered into a sub-tenancy in favour of the respondent. The agreement by which the sub-tenancy was created was unregistered. The appellant issued a notice under Section 106 of the TP Act terminating the monthly sub-tenancy and then instituted a suit for recovery of possession. The trial court held that since the sub-lease was unregistered, it was inadmissible in evidence and none of its terms, including clause 6 which empowered the landlord to serve a notice upon default in the payment of rent could be looked into. Hence the notice under Section 106 was held to be valid. The High Court allowed the appeal and remanded the proceedings to the trial court. In appeal, this Court held that clause 6 of the agreement was contrary to Section 106. While Section 106 contains the phrase "in the absence of a contract to the contrary", this must refer to a valid contract. This Court held that in the absence of a registered agreement, the court is not precluded from determining the factum of tenancy from oth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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