Madanlal vs Jain Brothers

Dr. Vineet Kothari, J.—The present second appeal has been filed by the plaintiff-landlord being aggrieved by the reversal of judgment and eviction decree dated 12.8.2009 passed by the learned trial court in civil original suit No. 33/2007 - Madan Lal vs. Jain Brothers vide judgment dated 26.11.2010 of learned Additional District Judge, Gulabpura District Bhilwara in Civil Regular Appeal No. 11/2009 - M/s Jain Brothers vs. Madanlal.

The learned trial court passed the eviction decree upon termination of tenancy in respect of the suit shop situated at Gulabpura, Bhilwara where, at the relevant point of time, the Rajasthan Rent Control Act, 1950 or the new Rent Control Act, 2001 did not apply and the landlord terminated the tenancy by serving a notice under Section 106 of the Transfer of Property Act w.e.f. 30/9/2007 inter alia on the ground of non-payment of rent and also for the bonafide need of the landlord. The learned trial court decreed the suit vide judgment dated 12/8/2009 while deciding the issue relating to relationship of landlord and tenant in favour of the plaintiff in the following manner:-

The first appeal filed by the defendant - M/s Jain Brothers before the learned Addl. District Judge, Gulabpura, however, allowed the appeal of the defendant on 26/11/2010 holding in favour of the defendant that since the decree of partition upon a compromise between the plaintiff - Madan Lal and his sister-in-law (wife of his elder brother) was not registered and duly stamped, therefore, the same being not admissible in evidence did not confer the rights on the plaintiff-landlord to file the present suit for eviction. The relevant findings of the first appellate court are as under:-

Being aggrieved by the aforesaid judgment passed in appeal, the plaintiff landlord filed the present second appeal, which was admitted by the coordinate bench on 21/3/2014 and the following substantial questions of law was framed:-

"Whether the learned lower first Appellate Court has erred in holding that the decree of partition passed on the basis of compromise requires to be duly stamped and registered and in the absence thereof the same is not admissible in evidence?" 5. Learned counsel for the appellant-plaintiff, Mr. Sanjay Nahar submitted that the first appellate court has wholly erred in not appreciating that in the partition suit for the partition of the joint family property between the plaintiff-Madan Lal and his sister-in-law - Ganga Devi on account of death of his elder brother, which suit property comprised of the suit shop also and upon the compromise between the parties, the decree was passed by the learned trial court and the suit shop fell in the share of plaintiff-Madan Lal, such decree upon a compromise in a pending civil suit did not require registration or stamp duty in view of the clear provision contained in Section 17(2)(vi) of the Indian Registration Act, 1908 since there was no immovable property other than that which is the subject matter of the suit and, therefore, such a decree given by the learned trial court upon a compromise did not require any registration or stamping as contended by the defendant tenant and the decree of partition was clearly admissible in evidence and on the basis of that the plaintiff got the status of landlord qua the defendant tenant and the attornment in his favour was automatic and consequently he was entitled to terminate the tenancy under Section 106 of the Transfer of Property Act and the same was rightly granted by the learned trial court but it was reversed by the learned first appellate court on a wholly erroneous ground. He also submitted that the matter is squarely covered by the decision of Supreme Court in the case of Som Dev and Others Vs. Rati Ram and Another, and, therefore, the present second appeal of the plaintiff deserves to be allowed and the substantial question of law framed above deserves to be answered in favour of the appellant-plaintiff.

Learned counsel for the appellant-plaintiff also informed the court that the suit property in question has further been sold by the plaintiff-Madan Lal in favour of one Sanjay Kumar Shah and, therefore, an application for impleadment on behalf of Sanjay Kumar Shah was filed in this Court on 1/12/2014 under Order 1 Rule 10 CPC, which has been allowed by this Court on 4/2/2015.

On the other hand, Mr. Dhanesh Saraswat for Mr. Ravi Bhansali, appearing for the respondent-defendant-tenant contended that the appellate court was justified in holding that on the basis of partition decree given by the civil court upon a compromise and in the absence of same being registered in accordance with the provisions of the Indian Registration Act, 1908, the same could not confer any ownership or title in favour of the present appellant-plaintiff - Madan Lal and the appellate court was justified in reversing the eviction decree on this ground.

Having heard the learned counsels for the parties, this Court is of the clear opinion that the appellate court has fallen into an error in reversing the eviction decree on the aforesaid ground. The provision of Section 17(2)(vi), which provides for a document not to be registered as per the Indian Registration Act, 1908 is clearly attracted in the present case. Section 17(2)(vi) is quoted below for ready reference:-

"17(2)(vi) any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject matter of the suit or proceedings;" 9. The suit property in question was very much the subject matter of the partition suit and by a decree upon compromise if the title was conveyed or conferred upon any party to the suit, then the registration and stamping of such decree upon compromise, is not required as per the clear provisions of Section 17(2)(vi) of the Registration Act, 1908. If only shop was purchased by any party to the partition suit and was transferred to other party as a consideration for compromise, it would have been a debatable issue, but that is not the fact here in this case.

Hon''ble Supreme Court in Som Dev and Others Vs. Rati Ram and Another, , explaining the provision, has clearly laid down in the following terms:-

"On a plain reading of Section 17 of the Registration Act, with particular reference to clause (vi) of sub-section (2) it is clear that a decree or order of a court and a compromise decree that relates only to the subject matter of the suit need not be registered on the ground that it is a non-testamentary instrument which purports to or operates to create, declare, assign, limit or extinguish any right to or in immovable property or which acknowledges receipt or payment of any consideration on account of a transaction which brings about the above results. But if a suit is decreed on the basis of a compromise and that compromise takes in property that is not the subject matter of the suit, such a compromise decree would require registration. Of course, we are not unmindful of the line of authorities that say that even if there is inclusion of property that is not the subject matter of the suit, if it constitutes the consideration for the compromise, such a compromise decree would be considered to be a compromise relating to the subject matter of the suit and such a decree would also not require registration in view of clause (vi) of Section 17(2) of the Registration Act. Since we are not concerned with that aspect here, it is not necessary to further deal with that question. Suffice it to say that on a plain reading of clause (vi) of Section 17(2) all decrees and orders of Court including a compromise decree subject to the exception as regards properties that are outside the subject matter of the suit, do not require registration on the ground that they are hit by Section 17(1)(b) and (c) of the Act. But at the same time, there is no exemption or exclusion, in respect of the clauses (a), (d) and (e) of Section 17(1) so that if a decree brings about a gift of immovable property, or lease of immovable property from year to year or for a term exceeding one year or reserving an early rent or a transfer of a decree or order of a Court or any award creating, declaring, assigning, limiting or extinguishing rights to and in immovable property, that requires to be registered." 11. It is also a well settled position of law that question of title is not really relevant in the eviction matters upon termination of tenancies under the provisions of Transfer of Property Act or even under the Rent Control Law, and the defendant cannot, therefore, contend that the plaintiff did not acquire any title under a particular decree upon compromise between the parties. The title of plaintiff-Madan Lal has not been challenged by the other party to the partition suit or even by any other member of the family and, therefore, the defendant tenant - M/s Jain Brothers even cannot call the same into question. The attornment on the basis of such partition by which the suit shop having fallen in the share of plaintiff Madan Lal was, therefore, automatic and he having served the notice for terminating the tenancy for non-payment of rent and bonafide need of the shop for the landlord and upon valid termination of such tenancy, he could very well file the present suit for eviction, which in the opinion of this Court was rightly decreed by the learned trial court. The appellate court has grossly erred in reversing the same by confusing the status of the present plaintiff-appellant as if the appellate court was seized of the challenge to the partition decree itself. A decree by itself was admissible in evidence even without the same being registered or stamped in accordance with the provisions of Indian Registration Act, 1908 in view of the provisions of Section 17(2)(vi) of the Act. The matter is, thus, covered by the aforesaid decision of Supreme Court in Som Dev vs. Rati Ram case (supra) and the eviction decree passed by the learned trial court, therefore, deserves to be upheld and the question of law deserves to be answered in favour of the plaintiff and against the defendant and it is so answered that the first appellate court has erred in holding that the decree of partition on the basis of compromise was required to be duly stamped and registered and in the absence thereof, the same was not admissible in evidence.

Accordingly, the present second appeal of the plaintiff is allowed. The judgment and decree of the first appellate court dated 26/11/2010 is set aside and the eviction decree passed by the learned trial court on 12/8/2009 is upheld.

The defendant-tenant-M/s Jain Brothers shall hand over the peaceful and vacant possession of the suit premises to the plaintiff-appellant or the new landlord Sanjay Kumar Shah within a period of six months from today i.e. on or before 1st September, 2015 and shall pay mesne profit @ Rs. 2,000/- per month from March, 2015 before 15th of next month either to appellant-landlord directly or in his Bank account, details of which may be supplied by the appellant-plaintiff or the new landlord, till vacant possession is handed over and in case there is any default in payment of mesne profit, the period of six months for eviction shall stand reduced and the decree of eviction would become executable forthwith. The respondent-defendant-tenant shall also clear all the arrears of rent and mesne profit and pay the same to the plaintiff within two months from today, otherwise the same will bear interest @ 9% per annum. The respondent-tenant or person in possession shall also further not sublet, assign or part with the possession of the suit premises or any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and the same would be treated as void. The respondent-defendant-tenant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within one month and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit shop is not handed over to the appellant-plaintiff or the new landlord within a period of six months from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the appellant-plaintiff or the new landlord shall also be entitled to invoke the contempt jurisdiction of this Court. Copy of this order be sent to the parties concerned and the courts below forthwith.