Ashok Kumar & Others vs Sultan Khan

Pankaj Mithal, J.—Heard Sri B.N. Agarwal, learned Counsel for the defendantappellants and Sri Mukhtar Alam for the sole plaintiffrespondent.

The dispute in the present suit is about a piece of land occupied by a shop which has been shown by letters DEFG in the paint map and admitted to be part of a bigger plot of ABCDEH or HBCE as shown in the plaint map.

The plaintiff respondent filed original suit No. 181/1985 against the defendantappellants for permanent injunction restraining them from intefering in his peaceful possession over the disputed land and in the alternative if he is not found in possession of the same to direct the defendantappellants to restore possession thereof to him. The suit was filed on the allegations that the land shown by letters ABCDEH or HBCE in the plaint map is the Nazul land.The said land was put to auction and the plaintiffrespondent was the successful bidder and the deposited the bid amount of Rs. 3100/. On the basis of the aforesaid auction Town Area Kadaura executed registered lease deed dated 28.4.1970 in favour of the plaintiffrespondent for a period of 30 years at the rent of Rs. 25 per annum. The collector authorized the Chairman of the Town Area vide order dated 17.3.1969 to execute the aforesaid sale deed and as such the sale deed is on behalf of the Collector. The plaintiff respondent thereafter got the map sanctioned from the Town Area and constructed two shops over half part of the said land. One of the shops shown by letters AGFH is in possession of Ram Pyare as tenant of the plaintiffrespondent. The other shop shown by letters GDEF is the disputed shop. The defendantrespondents have no concern with the said land and the shop but are trying to forcibly grab the same. The defendant respondents contested the suit and alleged that the plaintiff respondent is not the owner inpossession of the disputed land/shop. The plaintiff respondent is not having any valid lease deed of the said land. He never got any map of the shops passed by the Town Area and has not even constructed the shops. The plaintiff respondents in fact had executed the deed dated 12.6.1970 in favour of the defendant appellants wherein it was agreed that as the plaintiff respondent is not possessed of sufficient funds, the defendant appellants would construct a shop 16''x61/2'' and deliver its possession to him and the remaining portion own occupied by the shop in dispute shall stand transferred in favour of the defendant appellants on rent of Rs. 90/ per annum and they shall even have the right to get the lease deed of the said portion extended or renewed on expiry of initial period of 30 years of the lease. In accordance with the said deed, the defendant appellants constructed two shops and handed over the possession of the shop AGFH to the plaintiff respondent and kept the shop in dispute for themselves..

The Trial Court vide judgment and order dated 9.10.1998 decreed the suit holding that the plaintiff respondent is the lawful lessee of the land ABCDEH or BHEC. The defendant appellants are in possession of the land occupied by the disputed shop shown by letters GDEF which is part of the above land and as such they are directed to vacate the same and to handover its possessions to the plaintiff respondent. Against the aforesaid judgment and order for the trial Court, the defendant respondents preferred Civil Appeal No. 80/1998. The appeal too has been dismissed by the lower appellate Court vide judgment and order dated 1.10.2004.Therefore the defendant respondent has preferred this second appeal having lost from both the Courts below.

The first argument of the learned Counsel for the appellant is that the plaintiff respondent is not the lawful lessee of the land ABCDEH on part of which exists the shop in dispute. Under the provision of Nazul Manual lease of the property above Rs. 2500/ is liable to be executed by the Commissioner & not by the Collector. The said argument has been duly dealt with by both the Courts below and after considering the provisions of the Nazul Manual the Courts have concluded that leases in respect of Nazul land having the estimated value upto Rs. 2500/ is to be executed on behalf of the Collector and of the estimated value above Rs. 2500/ to 10,000/ by the Commissioner and above 10,000/ by the State. In the present case the lease is @ Rs. 25/ per annum and therefore its estimated value on the basis of lease rent comes to Rs. 500/ being 20 times of the lease rent. Therefore, the estimated value of the lease land is not over Rs. 2500/ and therefore the lease has validly been executed by the Collector. I do not find any error of law in the aforesaid finding recorded by the Courts below. Apart from the above reasoning, the defendant respondent themselves are claiming rights over part of the above property from the plaintiff respondent on the basis of deed dated 12.6.1970 alleged to have been executed by the plaintiffrespondent. Therefore, the defendant respondent impliedly accepts the legal right of the plaintiff respondent over the property in dispute and as such are estopped under law from disputing the authenticity of the lease deed dated 22.4.1970 under which the plaintiff respondent derives right as lessee.

The next submission of the learned Counsel for the appellant is that the plaintiff respondent had executed deed dated 12.6.1970 transferring his lease hold rights in the disputed portion in favour of the defendant appellants with a further right to get the lease extended and renewed. Therefore the defendant respondents are in lawful possession and as such neither any injunction can be issued against them nor possession of the said land can be taken unless the said lease is determined.

It is not disputed that the alleged deed dated 12.4.1970 is an unregistered document. A perusal of the contents of the said document reveal that its purpose is to transfer the lease hold rights in the said land in favour of the defendant respondent for remaining period of the lease which is 30 years with a further right to get it renewed on the expiry of said 30 years. Therefore, the aforesaid deed is a lease for a period exceeding 30 years. Section 107 of the Transfer of Property Act which deals with the manner of executing leases provides that a lease of immovable property from year to year or any term exceeding one year, or reserving yearly rent can be made only by a registered instrument irrespective of the lease rent fixed in the deed. The lease is admittedly for a term exceeding one year therefore it is required to be made by a registered instrument. Therefore no rights accrue to the defendant appellants on its basis. In AIR 1955 SC 328 (Sita Maharani v. Chhedi Mahto) it has been held that an unregistered lease which is required to be registered can not be used in evidence to prove the transfer. Therefore the Courts below rightly disbelieved the same and held to be inadmissible while decreeing the suit.

Learned counsel for the defendantappellant also placed reliance upon 2003 SCFBRC 290 : AIR 2003 SC 1905 Bondhar Singh v. Nihal Singh and others and has contended that even though the deed being unregistered is inadmissible in evidence but it can be looked into for collateral purposes to see the nature of the possession of the defendant appellants. No doubt the deed dated 12.6.1970 can be relied upon for collateral purposes but in the said deed it has not been stated that the possessions of the land has been delivered to the defendantappellant. Therefore, it is not a document of possession even. Accordingly, the possession of the defendantappellant is unlawful which can not be protected under law.

Sri Agrawal then submitted that in the absence of registered lease, the defendant appellant would be regarded as lessee on month to month basis and therefore unless their lease is determined, they are not liable to be evicted. In support he has placed reliance upon a judgment of Single Judge of this Court 1987 (1) ARC 390 Punjab and Sind Bank and another v. Smt. Shanti Devi wherein the Court held that under Section 107 of the Transfer of Property Act lease for one year can only be made by a registered instrument and if such lease is not registered it will at best be regaardeded as one farm month to month.

The privy Counsel in AIR 1931 PC 79 (Arif v. Jadunath) held that if the lease required to be made by a registered instrument and if not so made, is voic altogether. Since in the present case the deed is void due to non registration & and the possession has not been transferred therein in specific terms, the possession of the defendantappellants can not be treated as that of a lessee. In the absence of lawful possession as lessee he cannot be recognised even as a lessee on month to month basis. Therefore, no notice is required to determine it.

In view of the findings of the Courts below that the plaintiff respondent is the lawful lease of the plot ABCDEH comprising the portion shown by letters GDEF on which exists the shop in dispute, he is not entitle to any injunction as preyed. The appeal is devoid of merit and raises no substantial question of law on the facts of the case.

No other point has been raised and pressed before me.

As the appeal; on the aforesaid facts and circumstances, involves no substantial question of law it is dismissed with costs upon the parties.