Ram Kumar Khanna vs Rajiv Garg

J.V. Gupta, J.—This is tenant''s petition against whom ejectment application was dismissed by the Pent Controller but eviction was ordered by the Appellate Authority.

The landlord-Respondent who is a minor filed the ejectment application through the guardianship of his mother Smt. Pushpa Devi for the ejectment of the tenant from the demised premises consisting of two rooms, one courtyard and a channal with boundaries given in para 1 of the petition, on the allegations that ordininally the demised premises were rented cut to Ram Kumar Khanna on 16th May, 1972, by Dharam Pal, the father of the landlord, and subsequently rent note dated 26th May, 1972 (Ex. Al) was executed by the tenant in his favour, incoporating all the terms of the tenancy; that the property was a joint Hindu Family property which, in partition, fell to his share, i.e., the share of the applicant, under a decree dated 27th March, 1976 passed by the civil court- The eviction was sought, inter alia, on the ground that the tenant had made additions and alterations in the demised premises which had materially impaired the value and the utility of the building The tenant by way of written statement denied that he had made these alterations, as alleged, and pleaded that the premises let out to him consisted of four rooms, a courtyard, sheds, roofs of the rooms, store, latrine and channal, etc. It was pleaded that the premises were in the same condition when taken on rent and no material alteration had been made by him.

The learned Rent Controller found that since the document Ex. A-l was signed by both the parties, it amounted to a lease deed, rather than a rent note, and, therefore, was required to be registered u/s 107 and 111 of the Transfer of Property Act, and that since the document was not registered it was not admissible in evidence. From the evidence on record, it was found as under:

It is not proved that the Respondent has made any alteration in the property in dispute. The construction was already there as stated by the applicant and if any wholes are made in the wall to fix machinery by the Respondent, that does rot tantamount to material alteration. So, the applicant fails to prove that the Respondent has made material alteration and as such materially impaired the value and utility of the premises indispute.

With this finding, the ejectment application was dismissed on 1lth November, 1980. In appeal, the learned Appellate Authority reversed the finding of the Rent Controller on the ground that the document A-l was a rent note and. therefore, it did not require any registration, and was, thus, admissible as such Reliance was placed on the judgment of this Court in Harjas v. Hari Saroop 1977 (2) R.L.R. 400. In view of the said rent note and the description of the demised premises given therein, the Appellate Authority took the view that, "Thus, the oral evidence led by the tenant-Appellant against the terms of the rent note Ex. A 1 that the premises consisted of four rooms, sheds, store, latrine and channel when let out to him cannot be looked into." So relying on the description in the rent note Ex. A 1, it was found that the tenant was guilty of making such additions or alterations which had changed the nature of the premises resulting in material impairment of the value and utility thereof. As a result of this finding, eviction order was passed.

Learned Counsel for the Petitioner/tenant submitted that the document Ex. A 1 was not a rent note but a lease deed, as held by the learned Rent Controller, as it was signed by both the parties i.e., the landlord and the tenant, as also attested by the witnesses. In support of this contention he referred to Harios''s(sic) case (supra) and Chooth Ram v. Sh. Deep Chand Jain (1979) 81 P.L.R. 243. He further submitted that either the tenancy was oral or was based on document Ex. A 1, since the said document was not admissible in evidence the learned Kent Controller had rightly considered the oral evidence as well as the documentary evidence led by the tenant to come to the conclusion that he had not materially impaired the value and utility of the premises, as the alleged construction was already there when the premises were let out on 16th May, 1972. An argument was also raised that Sections 91 and 92 of the Indian Evidence. Act do not bar evidence to show the description of the property and it was not a term of the deed for which the evidence was barred there under. Moreover, argued the learned Counsel Ex A 1 was not, validly proved. The scribe who appeared in the witness box did not know the tenant personaly and the attesting witnesses were not produced by the landlord. According to the learned Counsel, the premises were already in occupation of the tenant and he has been carrying on cycle repairs, and, therefore, there was no occasion to raise any further construction. The landlord did not produce any witness from the locality to prove that the tenant had raised the alleged construction on the demised premises. Apart from that, it is not every construction which diminishes the value and utility of the demised premises and the landlord has failed to prove that the alleged construction, if any, had impaired the value and utility of the demised premises, contended the counsel.

On the other hand, the learned Counsel for the Respondent-landlord submitted that the document Ex. A 1 was a Tent note, as the tenancy was oral to start with and it was only a memorandum and, therefore, admissible in evidence According to the learned Counsel, in view of the said rent note, the oral evidence was not admissible, which goes contrary to the contents of the said document A 1. Thus, argued the learned Counsel, the view taken by the learned Appellate Authority in this behalf was perfectly valid and there was no ground to be interfered with in the revisional jurisdiction of this Court

I have heard the learned Counsel for the parties and also gone through the relevant evidence on record. Admittedly, Ex. A 1 is signed by both the parties, i.e , the landlord and the tenant, and is also attested by witnesses. That being so, it can not be termed as a rent note but falls within the purview of Sections 107 and 111 (sic) of the Transfer of Property Act, and was, thus, a lease deed. As held by this Court in Choeth Ram''s case (supra), since the lease deed was not registered the same was not admissible in evidence. The judgment reported as Harjas''s case (supra) and relied upon by the Appellate Authority has got no application to the facts of this case. In that case there was no dispute whether the document in question was a rent note or a lease deed, nor is there anything in the judgment to show that the document was signed by both the parties. What was held therein was that since the tenant was already in possession of the demised premises, subsequent execution of the rent note was not the foundation of the lease; as the oral lease was already current, the registration of the rent note was not necessary and it was admissible in evidence Thus, the view taken by the learned Rent Controller in this behalf was perfectly legal whereas the view taken by the Appellate Authority is wrong and arbitrary. The document Ex. A 1 was a lease deed, and not a rent note, and, therefore, required registration but being an unregistered document it was inadmissible in evidence.

Once it is held that the document Ex A 1 was a lease deed, the oral evidence as well as the documentary evidence led by the tenant to show that the premises were in the same condition as were taken on rent on 16th May, 1972, and that he had not raised any construction thereon was most relevant. The evidence so led by the tenant has been discussed in detail by the learned Rent Controller and on its appreciation, particularly from the copies of the House-tax Assessment Register for the years 1967-68, 1969-70. 1970-71, 1971-72 and 1972-73 and the report of the Inspector Factories dated 1st December, 1964 (Ex. RW 7/A) per which he made some objections when the plan (Copy Ex. RW 7/1) was submitted to him, amply proves that the tenant had made no additions or alterations resulting in any impairment of the value and the utility of the building. From all this evidence, the learned Rent Controller concluded: "So, from the evidence of these persons it is proved that the Respondent did not make any additions or alterations in the premises in dispute and the premises in dispute was having three rooms and one shed from the very beginning " As already observed, the learned Appellate Authority did not discuss that evidence at all as it was held that the document Ex A 1 was a rent note, and not the lease deed, and was, consequently, admissible in evidence.

In view of the above discussion this petition succeeds, the order of the Appellate Authority is set aside and that of the learned Rent Controller dismissing the ejectment application is restored with costs.