Sh. Ashok Tandon and Others vs Smt. Jaya Bisht and Others

Indermeet Kaur, J.

CM No. 19432/2010 (for exemption)

Exemption is allowed subject to just exceptions.

RSA No. 196/2010 & CM No. 19431/2010

This appeal has impugned the judgment and decree dated 28.7.2010 which has decreed the suit of the Plaintiff. Trial judge vide judgment and decree dated25.1.2010 had dismissed the suit filed by the Plaintiff Sanjay Bisht seeking possession of the suit property i.e. DSIDC Shed No. 46, Scheme-1, Phase-II, Okhla Industrial Area, New Delhi (hereinafter referred to as �the suit property�). The impugned judgment had reversed the finding of the trial judge; suit stood decreed.

The facts as evident from the record are that the Plaintiff claimed himself to the owner of the suit property; Defendant No. 1 had been granted permission to use the suit property temporarily; Defendant was using this space for temporary purpose only; he had agreed to pay Rs. 7800/- per month for this user; in March1996 Plaintiff asked the Defendant to remove his goods as he required the shed for his own business purpose; assurance was given by the Defendant that he will do so by August 1996 but to no avail. Present suit was accordingly filed.

Defendant contested the suit. His contention was that the affronted suit premises was given to him on rent basis; monthly rental was Rs. 54,00/-. Defendants are in exclusive possession as tenants; up to date rent had been paid.

Trial judge on the pleadings of the parties had framed the following two issues; they read as follows:

Whether the Plaintiff is entitled to the decree of possession in respect of suit property as prayed for? OPP

Whether the Plaintiff is entitled to the damages? If yes, at what rate and for what period? OPP

Relief.

Oral and documentary evidence was led. Admittedly Ex.DW-1/P-2 dated 5.4.1994 which was a rent deed was executed between the parties. This document is dated5.4.1994. In terms of this document the parties had entered into a rent agreement whereby the Defendant had agreed to pay Rs. 7800/- per month as rental charges; this agreement was valid up to 05.4.1997 i.e. for a period of three years; if the lease agreement is not renewed the lessee would vacate the suit premises. It is also not in dispute that DW-1 in his cross-examination had admitted the execution of the affronted document. He has admitted that Mark A is photocopy of this rent deed executed between himself and the Plaintiff which is Ex.DW-1/P-2

Trial judge had dismissed the suit. The impugned judgment as already noted supra had decreed the suit.

This is a second appeal. On behalf of the Appellant, it has been urged that the document Ex.DW-1/P-2 was an unregistered document, its terms and conditions could not be looked into. It is pointed out that the contention of the Plaintiff that he had terminated the tenancy of the Defendant vide legal notice dated 05.4.1997 is incorrect; this notice had been denied in the written statement. Admittedly this notice dated 05.4.1997 was not proved in the trial court. The contention of the Appellant before this Court is that the rent deed Ex.DW-1/P-2 being an unregistered document, the only inference which arises is that the tenancy of the Defendant was a tenancy on a month to month basis; said tenancy could be terminated only by a notice which in this case has not been given. The impugned judgment decreeing the suit of the Plaintiff for possession is thus an illegality; this is a perverse finding and is liable to be set aside; it has raised a substantial question of law.

Arguments have been countered.

Perusal of the record shows that the document Ex.DW-1/P-2 is an unregistered document. An unregistered rent deed cannot be looked into except for a collateral purpose. This is a settled position. However, DW-1 has admitted this document in his cross-examination. He has admitted that Ex.DW-1/P-2 was executed between himself and the Plaintiff. In this view of the matter, the impugned judgment relying upon this document has not committed any illegality. Nothing can be a better mode of proof than an admission itself. Section 58 of the Indian Evidence Act also clearly stipulates that facts which are admitted need not be proved. In terms of Ex.DW-1/P-2, the tenancy was for a period of three years; it had commenced on 05.4.1994 and was to be terminated by efflux of time on 05.4.1997; the terms contained therein stipulated that in case the parties did not mutually extend the tenancy, the Defendant would be liable to hand over the suit premises back to the Plaintiff. This document was rightly relied upon in the impugned judgment to return a finding that the tenancy had expired by efflux of time on 05.4.1997. As such no notice was required to be given by the Plaintiff to the Defendant to terminate the tenancy which already stood terminated by efflux of time.

In these circumstances, the non-proof of the notice dated 5.4.1994 does not become a hurdle in the case of the Plaintiff. He was rightfully entitled to the decree. The impugned judgment suffers from no infirmity.

Substantial questions of law have been framed in the body of the appeal on page 5; they read as follows:

A. Because a document of lease, the execution of which is admitted by the Defendant during his cross-examination, can be read in evidence (even though it is admittedly and apparently unstamped and unregistered) to hold that the same created a lease of immovable property for a fixed period (of three years)?

B. Because a first Appellate Court is competent to consider pleas (and also grant relief to the Appellant) on submissions which do not find any mention either in the plaint or even in the Memorandum of Appeal?

C. Because a plaint for the relief of ejectment from immovable property is maintainable without the tenancy being first determined prior to the institution of the suit?

D. Because a lease of immovable property automatically determined merely on the institution of the plaint for ejectment.

No such substantial question has arisen. Appeal as also pending application is dismissed in limine.