TECHNICIANS STUDIO (P) LTD. v. LILA GHOSH — 1976 DIGILAW 168 (CAL)

N. C. Mukherji, B. C. Ray ( 1 ) THIS appeal on behalf of the defendant appellant is directed against the judgment and decree dated May 9, 1973 passed in Title Appeal No. 10 of 1971 affirming the judgment and decree passed in Title Suit No. 59 of 1970 on August 12, 1971. ( 2 ) THE salient facts leading to this appeal are, that the plaintiff respondent No. 1 Smt. Lila Ghose widow of Sree Prosanna Ghose, since deceased, instituted a suit being Title Suit No. 59 of 1970 in the 3rd Court of Subordinate Judge at Alipore for a declaration that the defendant appellant M/s. Technician Studios (P) Ltd. who has been in possession of the suit premises described in schedule 'b' to the plaint on the basis of a contract as embodied in the petition of compromise is a trespasser after expiry of the period stipulated in the said contract and for recovery of khas possession on eviction of the defendant No. 1 therefrom. The plaintiff's case is that the suit property being premises No. 1 Baburam Ghose Road formerly premises Nos. 2, 3 and 4 Baburam Ghose Road measuring 11 bihas 17 kathas and 17 sq. ft. originally belong to one Debaprosad Ghose who by a registered deed of lease dated December 21, 1935 leased out the said premises No. 1, Baburam Ghose Road comprising of a garden house and other structures to one Priyanath Ganguly for 16 years commencing from January 1, 1935. The lessee started a film Studio business thereon under the name and style of ?kali Films Company? and subsequently the same was converted into a private limited company known as ?kali Films Ltd. ? Debaprosad Ghose executed and registered a deed of settlement on April 18, 1937 settling the said garden house and other structure along with the land to his sons - northern half measuring 6 bighas 2 kathas 3 chittaks 37 sq. ft. described in schedule 'b' and marked in red colour to Sree Prosanna (husband of the plaintiff) and the southern half, that is, 5 bighas 14 Kathas 12 chittaks and 3 sq. ft. to his son Girija Prosanna. ft. described in schedule 'b' and marked in red colour to Sree Prosanna (husband of the plaintiff) and the southern half, that is, 5 bighas 14 Kathas 12 chittaks and 3 sq. ft. to his son Girija Prosanna. The two brothers Sri Prosanna and Girija Prosanna commenced an action being T. S. No. 26 of 1962 in the 3rd Court of Subordinate Judge, Alipore for recovery of possession of the studio premises against Priyanath Ganguly on the grounds of default in payment of rent and expiry of the period of lease. It transpired during the pendency of the suit that Priyanath as receiver appointed by this Court in Suit No. 944 of 1952 settled the said property including the suit premises to a company known as M/s. Technicians Production who, in its turn, sold its rights, title and interest in the aforesaid premises to the defendant No. 1, M/s. Technicians Studios (P) Ltd. The said Technicians Production as well as the defendant No. 1 were impleaded as defendants in that suit. The suit was decreed ex parte and in executing of the said decree the entire garden house with all structures, machineries and fixtures was taken possession of on May 19, 1954. On June 2, 1954, an application purporting to be under Order 47 Rule 1 read with S. 151 of the Code of Civil Procedure was filed for review of the said judgment and decree and this was registered as Misc. Case No. 54 of 1954. This application having been dismissed a revisional application was moved and a Rule being C. R. No. 3693 of 1954 was issued. On July 27, 1955 the said Rule was disposed of in terms of a joint petition of compromise which provided inter alia that the defendant No. 1 would be a direct tenant under Sree Prasanna, the husband of the plaintiff and Gouri Prosanna, at a monthly rent of Rs. 1000/- payable in proportion of Rs. 500/- to each of them in respect of their moiety share and the lease would be for a period of 16 years from May 19, 1954 with option to defendant No. 1 to terminate the lease earlier on giving 60 days notice on the lessors. No deed of lease was executed or registered nor the said compromise petition containing the terms of settlement was registered. No deed of lease was executed or registered nor the said compromise petition containing the terms of settlement was registered. The defendant No. 1, however, possessed the Studio premises on the basis of the said compromise petition and paid rents upto March 1970. The plaintiff who became the sole owner of the suit premises described in schedule 'b' to the plaint on the basis of a will executed by her husband Sree Prosanna, since deceased, which had been duly probated served a notice on May 2, 1970 on the defendant No. 1 asking it to quit and vacate the suit premises. As the defendant No. 1 did not vacate the suit premises Title Suit No. 59 of 1970 was filed in the 3rd Court of Subordinate Judge, Alipore, for recovery of possession on evicting the defendant No. 1 from suit premises on a declaration that the defendant No. 1 was in wrongful occupation of suit premises as a trespasser and for recovery of damages stating inter alia that the defendant No. 1 was in possession of suit premises in pursuance of the terms and conditions of the said compromise, that the defendant No. 1 did not acquire the right, title or interest of a lessee or a tenant as no deed of lease was registered nor the contract contained in the compromise petition was registered, that the defendant No. 1 had no right to remain in occupation of the suit premises as the period of 16 years mentioned in the said compromise petition had expired and it had become a trespasser. ( 3 ) THE defendant No. 1 contested the claim of the plaintiff by filing a written statement contending inter alia that the defendant No. 1 company was inducted as tenant under Sri Prosanna Ghose and Girija Prosanna Ghose in respect of the garden house on the basis of the terms of settlement in Civil Rule No. 3693 of 1954 and the defendant No. 1 was a lawful tenant in respect of the said garden house. It was also pleaded in paragraph 5 of the written statement that the defendant No. 1 paid rents to the lessors according to the terms of settlement and the same had been accepted by them. It was also pleaded in paragraph 5 of the written statement that the defendant No. 1 paid rents to the lessors according to the terms of settlement and the same had been accepted by them. In paragraph 6 of the written statement it has been stated that Sree Prosanna and Girija Prosanna Ghose under the said terms of settlement admitted the defendant No. 1 as tenant in respect of the entire garden house. In paragraph 14 of the written statement it has been submitted that the defendant No. 1 has become a tenant on and from May 17, 1954 and is continuing as such even now. The defendant No. 1 contends that it was a tenant under Sree Prosanna and Girija Prosanna on the determination of the tenancy of the tenant of the first decree. The defendant No. 1, it is submitted, ipso facto and ispo jure became tenant under the plaintiff in terms of settlement incorporating the terms of tenancy which was pre-existing. It has been also contended that by payment and acceptance of rent from before the date of the compromise as alleged as also independent of compromise a monthly tenancy in its favour has been created. The defendant No. 1 also states that it is lawfully entitled to continue in possession of the garden house and property as a tenant. In paragraph 17 of the written statement it has been pleaded that the defendant No. 1 is entitled to the protection under the West Bengal Premises Tenancy Act, 1956. ( 4 ) ON August 11, 1971, the Subordinate Judge, 3rd Court, Alipore held that the effect of the compromise petition was like that of a lease for a period of 16 years and this lease could only be effected by a registered instrument as provided under S. 107 of the Transfer of Property Act. But as the compromise petition had not been registered it could not create a lease for a period of 16 years and consequently the defendant No. 1 did not acquire any tenancy right in the studio premises by virtue of the compromise petition. The possession of the defendant No. 1 cannot be regarded as that of a tenant. But as the compromise petition had not been registered it could not create a lease for a period of 16 years and consequently the defendant No. 1 did not acquire any tenancy right in the studio premises by virtue of the compromise petition. The possession of the defendant No. 1 cannot be regarded as that of a tenant. The plaintiff and the proforma defendant No. 2 were debarred from evicting the defendant No. 1 from the suit premises with a period of 16 years which the defendant No. 1 was entitled to get protection under S. 53a of T. P. Act. After expiry of that period the defendant No. 1 cannot have any manner of right, title or interest in studio premises by which it can protect its possession in respect of the said premises. It has also been held that the defendant No. 1 has not acquired any tenancy right by virtue of the payment and acceptance of rent on the basis of the terms of settlement enshrined in the compromise petition. The suit has been, therefore, decreed for khas possession as well as for mesne profits. ( 5 ) AGAINST the said judgment and decree the defendant No. 1 filed Title Appeal No. 1097 of 1971. On May 9, 1973 the learned Additional District Judge, 1st Court, Alipore dismissed the appeal affirming the judgment and decree of the trial court. ( 6 ) IT is against this judgment and decree the instant appeal has been preferred. ( 7 ) MR. Ranjit Kumar Banerjee, learned Advocate for the appellant has urged that S. 53a of the Transfer of Property Act imposes a statutory bar on the transferor or any person claiming under him from claiming any right contrary to the terms of contract in respect of the property in respect of which the transferee has taken possession in part performance of the contract of transfer. This right conferred on the transferee can be used as a defence in an action by the transferor for eviction from the immovable property in question of which the transferee is in possession but it does not, at any rate, empower the transferee to sue the transferor to enforce or protect his right under the contract of transfer. In other words it can be used as a shield and not as a sword. It has been contended by Mr. In other words it can be used as a shield and not as a sword. It has been contended by Mr. Banerjee, that this action creates and equitable estoppel on the transferor to assert his title. ( 8 ) MR. Banerjee has next contended that if the transferee has acquired any right dehors S. 53a of Transfer of Property Act the same cannot be defeated by the provision of this Section. The defendant No. 1 had been in possession of the suit premises in part performance of the contract as embodied in the solenama and had also paid rents to the plaintiff and proforma defendant No. 2 in pursuance of the said contract and it was thus protected from eviction from the suit premises during the period mentioned in the contract under S. 53a of T. P. Act. But nevertheless, the appellant has been paying rent month to month in respect of the disputed premises and the same have been accepted by the respondent landlord who duly granted receipts. As such a right of tenancy within the meaning of the West Bengal Premises Tenancy Act, 1966 has arises in favour of the appellant dehors S. 53a of the Transfer of Property Act. The compromise embodying the terms of the lease of the suit property for 16 years is required to be registered under S. 107 of the Transfer of Property Act. But the same has not been registered and as such the compromise decree is not valid as a document of lease and the same is inadmissible in evidence. ( 9 ) MR. Banerjee further submits that under S. 2 (h) of the West Bengal Premises Tenancy Act, 1956 payment and acceptance of rent and continuance in possession of the premises in question creates a tenancy and it continues so long the tenant is in possession of the premises. It is submitted that this statute is a special statute and by virtue of the provisions of S. 3 of the said Act will have an overriding effect. So even by mere payment and acceptance of rent and s. 53a of the Transfer of Property Act does not, in any manner, create any embargo on the acquisition of such a tenancy right. So even by mere payment and acceptance of rent and s. 53a of the Transfer of Property Act does not, in any manner, create any embargo on the acquisition of such a tenancy right. Reference has been made in this connection to the decisions reported in AIR 1937 PC 114; AIR 1959 SC 689 ; AIR 1952 SC 23 and AIR 1958 SC 794. ( 10 ) MR. Banerjee further submits that the compromise petition though not admissible in evidence under S. 49 of the Registration Act as the same was not registered yet it can be looked into for collateral purpose of showing the nature of possession of the defendant appellant and on a look into the said document it will be apparent that the defendant appellant is in possession of the suit property as a tenant under the petitioner. To substantiate his submission Mr. Banerjee has cited the decisions in AIR 1975 MP 230 (F. B.), AIR 1975 Delhi 267, 42 Calwn 771, AIR 1958 Madras 218 (F. B.) and AIR 1964 Calcutta 235. ( 11 ) THE last dimension of Mr. Banerjee's submission is that as the defendant have become monthly tenant in respect of suit premises by payment and acceptance of rent dehors the solenama, such a tenancy by payment and acceptance of rent dehors the solenama, such a tenancy is governed by the West Bengal Premises Tenancy Act. The said tenancy having been not terminated accordance with the provision of this Act, the decisions of the courts below that the tenancy of the defendants came to an end on the expiration of the period stipulated in the solenama are wholly illegal and unwarranted and as such they are liable to be set aside. The tenancy of the defendant, it is submitted, is continuing. ( 12 ) MR. SAKTINATH Mukherjee, learned Advocate for the respondent, has contended that the defendant appellant has been admittedly in possession of the studio premises by virtue of the compromise made in Civil Rule No. 3693 of 1954 and rents have been paid by the defendant No. 1 in accordance with terms of the said compromise petition. There is no dispute regarding this matter and both the courts below have held as such. ( 13 ) MR. There is no dispute regarding this matter and both the courts below have held as such. ( 13 ) MR. Mukherjee has next submitted that the solenama by virtue of which the appellant remained in possession of the suit premises and paid rents was not registered as required under S. 107 of the T. P. Act as it purports to create a lease for a period of 16 years. As such this document is invalid as a document of lease and the appellant has not acquired status of tenant. The appellant being in possession of the suit premises on the basis of the terms of settlement made in compromise petition was entitled to protect its possession under S. 53a of T. P. Act which expressly debars the respondent (transferor) from enforcing against the transferee any right in respect of the property of which the transferee has taken possession in part performance of the contract other than a right expressly provided by the terms of the contract. Mr. Mukherjee has also submitted that after the expiry of the period of 16 years the appellant has no right to remain in possession of the suit premises and it becomes a trespasser. The appellant was in possession of the suit premises on the basis of the said contract and paid rents as stipulated in the said compromise petition. As such the appellant, it is submitted, cannot claim to be a tenant of the suit premises by such payment and acceptance of rent. In view of the application of S. 53a of the Transfer of Property Act to this case there is no question of acquiring a tenancy right dehors S. 53a of the said Act from such payment and acceptance of rent. In support of this submission the decisions reported in 66 Indian Appeal 293, AIR 1968 Sc 794 , 46 CWN 374, AIR 1954 Cal. 235 and AIR 1962 Calcutta 502 have been cited. ( 14 ) MR. Mukherjee has strenuously contended that question of presumed or implied tenancy arises only in a case where the tenancy is admitted and the only question arises for giving a legal basis to such a tenancy. An implied or presumed tenancy can arise only in a case where payment and acceptance of rent is referable to an intention to create a relationship of landlord and tenant. An implied or presumed tenancy can arise only in a case where payment and acceptance of rent is referable to an intention to create a relationship of landlord and tenant. Such an intention can be inferred from the facts and circumstances of the case and not otherwise. Thus a tenancy is presumed or implied when possession or payment and acceptance of rent cannot be otherwise explained. In connection with this submission the decisions reported In AIR 1952 SC page 23, 42 Calwn 771, 3 Indian Appeal 92, 1942 (2) All England Repoter 647 and AIR 1968 SC 919 have been cited. ( 15 ) THERE is no dispute that Sree Prosanna Ghose and Girija Prosanna Ghose, who got the studio premises on the basis of the deed of settlement from their father Debaprosad Ghose commenced an action being T. S. No. 26 of 1952 for recovery of possession of the said premises against the original lessee Priyanath Ganguly and the sublessees including the defendant appellant an obtained and ex parte decree. In execution of the said decree the possession of the garden house along with structures, machineries, plants etc. , was taken through court by Sree Prosanna and Girija Prosanna on May 19, 1954. An application for review of the said judgment and decree being Misc. Case No. 54 of 1954 was filed under Order 47 Rule 1 read with S. 151 of the Code of Civil Procedure but the same was dismissed. Against that an application for revision of the said order was made in this court and a Rule being C. R. No. 3693 of 1954 was obtained. The said Rule was disposed of by this Court by order dated July 27, 1955 in terms of a petition of compromise recording the terms of settlement between Sree Prosanna Ghose, husband of the plaintiff respondent and Girija Prosanna Ghose and defendant No. 1 appellant. The terms of the settlement which are relevant for the decision of this appeal are set out hereunder: -1. The terms of the settlement which are relevant for the decision of this appeal are set out hereunder: -1. The Technicians Studios Ltd, would become a direct tenant under Sree Prosanna Ghose and Girija Prosanna Ghose in respect of each of their respective half shares of premises No. 2, 3 and 4, Baburam Ghose Road, Tollygunge, Calcutta, together with all existing structures, installations and fixtures including the electric transformer for the supply of 6000-400 Voltas 125 K. V. A. electricity, water and other easements on a total rent of Rs. 1000.- per month, payable from 17th May, 1954, i. e. the date when the decree for possession in T. Suit No. 26 of 1952 was executed and shall also pay all municipal taxes, both shares. 2. The said rent of Rs. 1000/- shall be paid in proportion of Rs. 500/- to Sree Prosanna Ghose and of Rs. 500/- to Girija Prosanna Ghose and the rent of every month shall be paid on or before 25th day of the next following month. 3. The Technicians Studio Ltd. , would deliver possession of space of 100 ft. to the South of the main and the only gate of premises No. 2, 3 and 4 Baburam Ghose Road, Tollygunge, upto a depth of 20 ft. from the right side, to be demarcated by Sree A. K. Sen, Barrister-at-law, to such of the lessor to whom the said shall belong. . . 4. The lease will be for 16 years commencing on and from 19th May, 1954 with the option on the part of the Technicians Studio Ltd. , to terminate the lease on 60 days notice. ? ( 16 ) THE defendant appellant admittedly remained in possession of the suit premises in accordance with the terms of settlement contained in the said compromise petition (Ext. 9 ). The said compromise petition providing for a lease of the suit premises together with structures, machineries, sheds, buildings etc. for a period of 16 years has not been registered nor any registered deed of lease was executed as mandatorily required under the provisions of S. 107 of the Transfer of Property Act. The compromise petition containing the terms of settlement is, therefore, invalid as a document of lease and it does not create any lease of the suit property for a period of 16 years as mentioned in the terms of settlement. The compromise petition containing the terms of settlement is, therefore, invalid as a document of lease and it does not create any lease of the suit property for a period of 16 years as mentioned in the terms of settlement. The defendant appellant who had been in possession of the suit premises on the basis of the said solenama did not acquire the status of a tenant as it could not be treated as a lease in respect of the suit premises. Though the unregistered compromise petition did not create any valid lease of suit property yet the appellant who remained in possession of the suit premises in part performance of the contract of lease contained in the said compromise petition and paid rents to the plaintiff respondent on the basis of the said contract was entitled to defend its possession against any action brought by the transferor respondent to evict the appellant from the suit premises otherwise than in accordance with the terms of the contract. This protection is afforded to the defendant appellant by the equitable doctrine of estoppel as enacted in S. 53a of the Transfer of Property Act. This S. 53a of has been introduced in the Transfer of Property Act, 1882 (Act IV of 1882) by the Transfer of Property Act (Amendment) Act, 1929 (Act XX of 1929 ). This section purports to import in part the English equitable doctrine of part performance. It clearly lays down that the transferor shall be debarred from enforcing against the transferee and the persons claiming under him any right in respect of the property which the transferee has taken possession other than a right expressly provided by the terms of the contract. In other words under the provisions of this Section the transferor is estopped from enforcing any right contrary to the right expressly provided in the terms of the contract against the transferee or any person claiming under him in respect of property of which possession has been taken in part performance of the contract. By virtue of this section part performance does not give rise to an equity as in England but to a statutory right. The right is more limited than the English equity in two respects i. e. (a) the contract must be in writing signed by the transferor and (b) it is available only as a defence. By virtue of this section part performance does not give rise to an equity as in England but to a statutory right. The right is more limited than the English equity in two respects i. e. (a) the contract must be in writing signed by the transferor and (b) it is available only as a defence. Thus it is a sort of passive equity and not an active equity as in England whereby the person in possession may enforce the contract by an independent suit or other proceeding. This right thus can be used as a shield and not as a sword that is as a weapon of defence. In this case the compromise petition is in writing signed by the plaintiff respondent (transferor) and by the defendant appellant (transferee) and the terms of the transfer, that is, the settlement can be ascertained with reasonable certainty from the same. It is also admitted that the defendant appellant remained in possession of the suit premises in part performance of the contract contained in the said compromise petition and paid rents in furtherance of the said contract. ( 17 ) AS such S. 53a of the Transfer of Property Act applied in this case. So the plaintiff respondent was estopped from enforcing against the transferee any right contrary to the terms of the contract in respect of the suit premises. ( 18 ) IT may be mentioned in this connection that S. 49 of the Indian Registration Act 1902 (Act 16 of 1908) has been amended by S. 10 of the Transfer of Property (Amendment) Act, 1929 whereby a proviso of sub-section C of S. 49 has been introduced. This amended provision specifically provides that an unregistered document affecting immovable property may be received as evidence of part performance of a contract for the purpose of S. 53a of the Transfer of Property Act, 1882 or as evidence of any collateral transaction not required to be effected by registered as required under T. P. Act is admissible in evidence for the purpose of proving part performance of a contract under S. 53a of T. P. Act. In AIR 1950 Supreme Court page 1 Kaneklal Mansukbhai v. Hormusji Jamsedji Ginwalla and Ors the fact in short was that a suit was filed by the respondent firm for recovery of possession of certain plots of land for mesne profits on ejectment of the defendant appellant. There was an agreement of lease evidenced by some letters whereby the plaintiffs agreed to lease out the disputed plots of land to the defendant for the purpose of building a factory thereon. The defendant took possession of the land on the basis of the said agreement of lease and paid rents to the plaintiffs for some years. But no formal deed of lease was executed and registered. The plaintiff's plea of ejectment was based mainly on the ground that there was no valid lease and so the defendant was not entitled to claim the rights of a permanent tenant in respect of suit property of which he was in possession in part performance of the agreement of lease and paid rents to the plaintiffs on the basis of the agreement and so he was not liable to be evicted from the suit land by the plaintiff in contravention of the agreement of lease under the provisions of S. 53a of T. P. Act. ( 19 ) IT was held by Mahajan, J. that the defendants respondents took possession of the land in part performance of the agreement of lease and paid rents to the plaintiff and the defendants were willing to perform their part of the contract. The agreement of lease creating a present demise though not registered was admissible in evidence under S. 49 of the Registration Act, as evidence of part performance. As such S. 53a of T. P. Act was applicable to this case and the plaintiff could not eject the defendant from the suit land. The agreement of lease creating a present demise though not registered was admissible in evidence under S. 49 of the Registration Act, as evidence of part performance. As such S. 53a of T. P. Act was applicable to this case and the plaintiff could not eject the defendant from the suit land. ( 20 ) IN 66 Indian Appeal 293=air 1940 P. C. 1, Probodh Kumar Das and others v. Dantmara Tea Company Ltd. and others the appellants as plaintiffs brought a suit for a declaration that the respondents had no right, title or interest to Kaiyacherra Tea Estate and are debarred from enforcing any right to the estate including a right to sell tea under the export quota allotted to it and for a declaration that the plaintiffs had acquired at least in part the purchaser's right under it stating intr alia that the said Tea Estate which belonged to Kaiyacherra Tea Company Ltd. which was wound up and the estate was purchased by Gillanders Arbuthnot and Co. at an auction sale. On 10. 10. 1931 by an interchange of letters of offer and acceptance the company agreed to sell it to one S. Roy who paid 1st installment of the price and entered into possession. No conveyance was, however, in fact executed in pursuance of that contract. Trial Court held that appellants as plaintiffs could enforce provisions of S. 53a of Transfer of Property Act. It was also held that the said provision did not confer any title on the transferee who took possession in pursuance of a written but unregistered contract. The right conferred by S. 53a is a right available only to the defendant to protect his possession. On appeal the High Court held that S. 53a of the T. P. Act protected an aggrieved person only as a defendant and did not assist him as plaintiff and that the appellants could not enforce the provision of the section. On further appeal it was held by Their Lordships of Privy Council that the amendment of the law affected by the enactment of S. 53a conferred no right of action on a transferee in possession under an unregistered contract of sale. Their Lordships agreed with the view expressed by Mitter, J. in the High Court that the right conferred by S. 53a was a right available only to the defendant to protect his possession. Their Lordships agreed with the view expressed by Mitter, J. in the High Court that the right conferred by S. 53a was a right available only to the defendant to protect his possession. It has been observed that the section is so framed as to impose a statutory bar on the transferor; it confers no active title on transferee. Indeed, any other reading of it would make a serious inroad on the whole scheme of the Transfer of Property Act. ( 21 ) IN 46 CWN 374 (376)=air 1941 P. C. 128 S. N. Banerjee and another v. The Kuchwar Lime and Stone Co. Ltd. it has been observed by Their Lordships of the Privy Council that S. 53a of the Transfer of Property Act does not operate to create a form of transfer of property which is exempt from registration. It creates no real right. It merely creates rights of estoppel between the proposed transferee and transferor, which have no operation against third persons not claiming under those persons. Consequently where under a contract of transfer of immovable property, requiring registration but unregistered, the transferee has taken possession, a third party cannot say that there has been a valid and effective transfer. ( 22 ) IN AIR 1968 SC 794 , Delhi Motor Car Co. v. U. A. Basrurkar the motor car company, a partnership firm entered into a contract with New Garage Ltd, a private limited company for taking sublease of a part of the building of which the company was a tenant. The contract was evidenced by three unregistered documents which did not in terms purport to be a sublease and was given in the form of partnership in order to avoid the liability to ejectment under the Rent Control law. The plaintiff was given possession of a portion of the building on 1. 4. 1950 and it started its business. The plaintiff on being dispossessed brought a suit for possession of the building on the basis of the unregistered documents and claimed damages and injunction. It was observed that the unregistered documents purport to create a lease for 15 months and the same being not registered could not create a valid lease under S. 107 of the T. P. Act. The said documents are admissible in evidence. Leaving aside these documents there is no material such as rent receipts etc. It was observed that the unregistered documents purport to create a lease for 15 months and the same being not registered could not create a valid lease under S. 107 of the T. P. Act. The said documents are admissible in evidence. Leaving aside these documents there is no material such as rent receipts etc. from which it could be inferred that a lease from month to month had come into existence between the firm and company. So the decision in AIR 1952 SC 23 did not apply and S. 106 of the Transfer of Property Act was inapplicable. Section 53a of the T. P. Act was not applicable in this case as it did not confer any right on the lessee to enforce his right on the basis of an unregistered lease by resort to that provision. The lessee can only take recourse to it to defend his possession as had been observed in 66 Indian Appeal 293. ( 23 ) THE next point that falls for consideration is whether in such a case as the present one where S. 53a of T. P. Act applies a tenancy can be acquired by reason of payment and acceptance of rent after the expiry of the period stipulated in the contract envisaged in the petition of compromise (Ext. 9) dehors S. 53a of the Transfer of Property Act and whether the duration of such tenancy is to be determined in accordance with the provision of S. 106 of the Transfer of Property Act. ( 24 ) I have already held that S. 53a does not provide that a good title passed to the transferee on the basis of a contract of transfer not made in accordance with the provision of S. 107 of the Transfer of Property Act. It merely says that the transferor shall be debarred from enforcing against the transferee and the persons claiming under him any right in respect of the property of which the transferee has taken possession. In other words it merely operates as a bar in the plaintiff's ascertaining his title. It is only a right to protect the possession of the transferee against any challenge to it by the transferor contrary to the tenor of the contract of the instrument of transfer. In other words it merely operates as a bar in the plaintiff's ascertaining his title. It is only a right to protect the possession of the transferee against any challenge to it by the transferor contrary to the tenor of the contract of the instrument of transfer. Thus S. 53a applies to a contract which owing to non-registration and or non-compliance with the other requirements as provided in S. 107 of T. P. Act does not operate as a valid transfer. In this case the appellant remained in possession of the suit premises on the basis of the compromise petition and paid rents to the plaintiff respondent in accordance with the terms of settlement embodied in the said compromise petition upto March, 1970. This payment of rent by the appellant to the plaintiff respondent who accepted the same did not create any tenancy in favour of the appellant inasmuch as the said payments were made in part performance of the said contract of lease contained in the compromise petition. ( 25 ) IN A. I. R. 1959 Calcutta page 23, Rampratap Kaya v. The National Petroleum Co. Ltd. the facts in short are that the National Petroleum Co. Ltd. brought an action against Rampratap Kaya, the appellant for ejectment from a corrugated shed and godown being premises No. P2 Paharpur Siding Road of the Port Commissioners, Calcutta in King Georges Dock. There was also a claim for damages for wrongful occupation. The respondent's (sie) case was that its predecessor' in interest the National Petroleum Co. Ltd. were in possession of the suit premises on the basis of an agreement executed by both the parties. One of the terms of the said agreement was that the company would provide the appellant with a suitable shed and godown at a monthly rent of machines and would remain in occupation for a period of five years after expiry of which it would return vacant-possession. The appellant after the expiry of the period of five years refused to vacate the premises and as such he was n wrongful occupation of the suit premises as a trespasser since then. The appellant after the expiry of the period of five years refused to vacate the premises and as such he was n wrongful occupation of the suit premises as a trespasser since then. The respondent, on the other hand, took out the defence that the unregistered agreement did create a lease for a period of five years but as the letting was for manufacturing purposes he had in law a tenancy from year to year terminable by six months' notice to quit ending with the year of the tenancy and as no such notice had been served he continued to be a tenant and not a trespasser as alleged. It was observed by P. N. Mitra, J. that S. 53a conferred a right on the transferee to the extent that it imposes a bar on the transferor but this was only a right to protect his possession against any challenge to it by the latter contrary to the tenor of the contract or the instrument of transfer. The appellant took possession of the premises in part performance of the contract and he remained in possession for the full period of the agreement. It would be meaningless to say that the right of the respondent to have the premises returned to it on the expiry of the period would be dependent upon the willingness of the appellant to restore it. The appellant was bound to vacate the premises on the expiry of the period of five years and his possession became wrongful thereafter. ( 26 ) IN A. I. R. 1962 Calcutta 502, Lal Behari Sasmal v. Kanak Kanti Roy the fact in short was that the defendant Lal Behari got into possession of suit premises by virtue of an unregistered patta executed by Bhupati Nath Roy on behalf of the minor son Kanak Kanti Roy leasing out the same for a period of 25 years at a monthly rent of Rs. 3 and 8 annas with right to make it habitable by necessary repairs and additions to rooms. The defendant made additions and repairs and had been residing therein with his family. The suit for ejectment of defendant from suit premises was filed by the plaintiff. Trial Court held that as the lease had not run out, no eviction could be made. The prayer for ejectment was disallowed and the suit was decreed only for arrears of rent. The defendant made additions and repairs and had been residing therein with his family. The suit for ejectment of defendant from suit premises was filed by the plaintiff. Trial Court held that as the lease had not run out, no eviction could be made. The prayer for ejectment was disallowed and the suit was decreed only for arrears of rent. On appeal the Lower Appellate Court held that S. 53a of the T. P. Act was not applicable to the facts of the case. The patta being an unregistered document not signed by the defendant and being not registered did not create any lease owing to its not being made in accordance with S. 107 of T. P. Act. It had been observed by Bijoyesh Mukherjee, J. that the patta though not a lease was in writing from which the terms necessary to constitute a transfer could be ascertained with reasonable certainty and the defendant in part performance of the contract had taken possession of the premises, the subject of the contract. So the plaintiff was debarred from enforcing against the defendant any right other than the rights expressly provided in the contract. Section 53a applied to this case and there was hardly any room for ?presumed? or ?implied? tenancy because a lease of immovable property for any term exceeding one year can be made only by a registered instrument. ( 27 ) IN AIR 1964 Calcutta 235, Biswabani Pvt. Ltd. v. Santosh Kumar Datta and others the Cinema House at Chintamoni Dey Lane, Howrah, belonging to respondents Nos. 1 and 2 Santosh Kumar Datta and Nandalal Datta was leased out to respondent No. 3, Kanti Bhusan Bose, for a period of five years with effect from 1. 9. 1948. This Kanti Bhusan Bose was the managing director of Biswabani Pvt. Ltd. By mutual consent the respondents 1 and 2 accepted the appellant company as the tenant and it was paying rent at Rs. 2000/- per month. Thereafter on 5th of October, 1963, the respondents 1 and 2 brought a suit for ejectment against the appellant company and the respondent No. 3. The said suit was ultimately disposed of on the basis of a petition of compromise filed on 26th February, 1955. 2000/- per month. Thereafter on 5th of October, 1963, the respondents 1 and 2 brought a suit for ejectment against the appellant company and the respondent No. 3. The said suit was ultimately disposed of on the basis of a petition of compromise filed on 26th February, 1955. By the compromise petition the parties agreed and the appellant company remained in the cinema house for a period of five years from 1st March, 1955 at a certain rent. It was agreed that a written lease was to be executed and registered containing all the terms embodied in the solenama and that there would be not further extension of the lease after the expiry of the stipulated period. In this suit the defence of the appellant company was that by payment and acceptance of rent it had acquired a tenancy in respect of the suit premises. It was observed by Sinha, J. that the appellant was in possession of cinema house on the basis of the said unregistered solenama and it did not hold the said premises as a tenant from month to month by virtue of S. 53a or any other provision of law. Such a tenancy was neither created by the agreement of parties nor by operation of law. The right of the appellant to remain in possession did not confer upon it the status of a tenant but an equitable right was created by S. 53a of the T. P. Act protecting its possession. This right came to an end upon the expiry of five years. The estoppel can only be continued so long as the solenama allows it to continue. After that it was defenceless and it became a trespasser. It was also observed that the decision in AIR 1952 Supreme Court 23, Ram Kumar Das v. Jagadish Chandra Deo was not applicable to the facts of this case inasmuch as in that case the plaintiff admitted the tenancy of the defendant and the only point of decision was as to what was the duration of the tenancy. The question of S. 53a of the T. P. Act was not at all involved in the said case. The question of S. 53a of the T. P. Act was not at all involved in the said case. In AIR 1952 SC 23 , Ram Kumar Das v. Jagadish Prosad Deo the defendant Ram Kumar executed a Kabuliyat on 8th December, 1924 in favour of the Receiver who was in charge of the plaintiff's estate by which he purported to take settlement of land-in-suit for building purposes for a period of 10 years at an annual rent of Rs. 46/- and on payment of a Selami of Rs. 250/ -. The said Kabuliyat was registered and the defendant paid the annual rents for two years i. e. for 1925 and 1926 to the Receiver and thereafter he did not pay rent to the Receiver. The plaintiff after being entitled to the estate to which the suit land appertained commenced Title Suit No. 2 of 1967 against the defendant for his ejectment on the ground of expiration of the period of lease. In the said suit it was held that by payment and acceptance of rent in 1925-26 the tenancy was created and by holding over after 1926 the defendant occupied the position of a monthly tenant. But as the tenancy had not been terminated by 15 days' notice to quit the suit was dismissed. Thereafter the plaintiff instituted a suit for ejectment of the defendant after serving proper notice to quit on him. The question for decision was whether by payment and acceptance of rent a monthly tenancy was created by the admitted payment and acceptance of rent. The question of S. 53a of the T. A. Act was not at all raised nor the tenancy right of the defendant in the suit land on the basis of the payment and acceptance of rent was disputed. On the other hand, the plaintiff admitted the defendant to be a tenant of this suit land. This case, therefore, is no authority for the proposition that even in a case where S. 53a of the T. P. Act applies the defendant inducted into the possession of the suit properties on the basis of a contract not made in accordance with the provisions of S. 107 of the T. P. Act was entitled to claim a tenancy right dehors the contract. In AIR 1968 SC 794 , Delhi Motor Car Co. In AIR 1968 SC 794 , Delhi Motor Car Co. v. U. A. Basrurkar the plaintiff, a partnership firm entered into a contract with the defendant company for taking sublease of a building of which the company was a tenant. The contract was evidenced by three unregistered documents given in the form of a partnership to avoid the liability to ejectment under the Rent Control Law. The plaintiff was given possession of only a portion of building and subsequently the plaintiff was dispossessed therefrom and so he brought a suit for possession of the building on the basis of the unregistered documents. It was held that at no stage is was pleaded nor any evidence was led to show that independently of the said three documents there was any material from which it could be inferred that a lease from month to month had come into existence between the firm and the company. No such point was urged either in the Trial Court or before the High Court and no such finding of fact exists. This case, therefore, is not at all relevant on the question of presumed tenancy. In AIR 1937 PC 114, Matritime Electric Co. v. General Dairies it has been held by Their Lordships of Privy Council that the plea of estoppel could not be set up to prevent positive duty enjoined by the statute to do. An estoppel is a rule of evidence which can under certain special circumstances be invoked by a party to an action; it cannot, therefore, avail in such a case to release the party suing from an obligation to obey such a statute nor can it enable the opposite party to escape from a statutory obligation of such a kind on his part. This case does not apply to the facts of this case. ( 28 ) IN AIR 1959 SC 689 , Waman Shriniwas Kirri v. Ratilal Bhagwandas and Co. the respondent, the owner of suit premises entered into an agreement with the appellant who was a tenant in respect of some shops of ?fida Ali Villa? to vacate the said premises which the respondent wanted to demolish and construct a new buildings thereon on the respondent's giving him a portion of suit premises with permission to keep sub-tenants in the same manner as he kept in shops of the previous premises. to vacate the said premises which the respondent wanted to demolish and construct a new buildings thereon on the respondent's giving him a portion of suit premises with permission to keep sub-tenants in the same manner as he kept in shops of the previous premises. The terms of the sublease had been embodied in a letter in Marathi written by respondent to appellant. The respondent brought the suit for ejectment of appellant (defendant) on the ground of default and subletting after serving notice to quit and vacate the suit premises on the defendant. ( 29 ) THE plea of waiver on the basis of the said agreement to induct subtenants was negatived on the ground that in view statutory bar created by S. 15 of Bombay Rents, Hotel and Lodging House Rates Control Act (57 of 1947) expressly prohibiting subletting the agreement was invalid and unenforceable in law. This decision does not apply to the present case inasmuch as the agreement contained in the solenama though not made in the manner laid down in S. 107 of the T. P. Act yet it confers a right on the lessee to protect his possession taken in part performance of contract by raising such a plea as defence in a suit for possession of the suit land by lessor in contravention of the terms of contract. This solenama cannot by any stretch of imagination be treated as illegal being made contrary to the express statutory provision and as such invalid and unenforceable. ( 30 ) IN 42 Calwn 771, Udoytara Saha v. Habibar Rahaman, Title Suit No;73 of 1921 the fact in short was that one Abinash Singh, the previous tenant executed a Kabuliyat on 8th Chaitra, 1307 B. S. taking lease of the suit land at yearly rent of Rs. 618/- payable in 4 equal installments for residing on the land on erecting structures. The heirs of Abinash transferred this land to defendant No. 1. The plaintiff thereupon instituted Title Suit No. 73 of 1921 for recovery of possession impleading the heirs of the original tenant and the defendant No. 1. Two questions arose for determination: - (1) Whether the tenancy was governed by B. T. Act, (2) Whether notice to quit was legally sufficient. Thus the existence of the tenancy was not disputed. The plaintiff thereupon instituted Title Suit No. 73 of 1921 for recovery of possession impleading the heirs of the original tenant and the defendant No. 1. Two questions arose for determination: - (1) Whether the tenancy was governed by B. T. Act, (2) Whether notice to quit was legally sufficient. Thus the existence of the tenancy was not disputed. The solenama entered into between the parties being not registered could not create a lease and so the tenancy being one for residence was held to be a tenancy from month to month. This case has no application to the facts of the present case where there is no admitted tenancy. ( 31 ) IN 3 I. A. 92, Ranee Sarat Kowar v. Himmut Bahadur and others it was held that the recognition of the interest of the defendants by receipt of rent from them would constitute some kind of tenancy requiring to be determined by notice or otherwise. This decision has no application to this case as the possession of the defendant appellant and payment of rent by it are referable to the unregistered solenama. ( 32 ) ON a conspectus of all the decisions mentioned before the conclusion is irresistible that S. 53a of T. P. Act applies to a contract which because of non-registration or non-compliance with the provisions of S. 107 of T. P. Act does not operate as a document of lease creating a tenancy in favour of the transferee. This section does not create any right I favour of the lessee or transferee which the transferee or lessee can enforce on the transferor by bringing an action against the transferor or lessor. It merely debars the transferor or lessor to enforce any right against the transferee who in part performance of the contract has taken possession of the immovable property, the subject matter of contract and paid rents in furtherance of the contract. So the appellant who was in possession of the suit premises on the basis of the unregistered solenama did not acquire any tenancy right in the same. The appellant was entitled to defend his possession in an action by the transferor to evict it from the suit premises during the period stipulated in the said compromise petition. So the appellant who was in possession of the suit premises on the basis of the unregistered solenama did not acquire any tenancy right in the same. The appellant was entitled to defend his possession in an action by the transferor to evict it from the suit premises during the period stipulated in the said compromise petition. After expiry of the period of 16 years as mentioned in the said compromise petition the appellant had no right to remain in possession of the same and it became a trespasser. The rents that were paid by the appellant to the plaintiff respondent and proforma respondent no. 2 during the period stipulated in the contract did not create any tenancy whatsoever in favour of the appellant. There is no contract of tenancy between the appellant and the plaintiff respondent and as such there is no scope for any ?presumed? or ?implied? tenancy. Consequently s. 2 (h) of the West Bengal Premises Tenancy Act, 1956 has no application to this case and so after expiry of the period mentioned in the contract the defendant appellant did not acquire any right, title or interest in the suit property and as such it can not resist the plaintiffs action for recovery of possession. It is, therefore, needless to consider the question whether an implied tenancy can be inferred from the conduct of the parties and the circumstances of the case. ( 33 ) WITH regard to the last contention of Mr. Banerjee learned Advocate for the appellant, it is true that S. 27a of the Specific Relief Act, 1877 provides for specific performance of a contract of lease of immovable property provided the same is in writing singed by the parties thereto even though the same was not registered if the lessee has in part performance of the contract has taken possession of the property. In this case the solenama is, therefore, specifically enforceable. It has, therefore, been contended that from the payment and acceptance of rents a tenancy should be inferred. The decision in AIR 1950 SC 1 , Maneklal v. H. J. Ginwalla, was referred to in this connection. In that case it was observed by the Supreme Court that an agreement of lease is specifically enforceable under S. 27a of Specific Relief Act provided the contracts had been made after 1st April, 1930. The decision in AIR 1950 SC 1 , Maneklal v. H. J. Ginwalla, was referred to in this connection. In that case it was observed by the Supreme Court that an agreement of lease is specifically enforceable under S. 27a of Specific Relief Act provided the contracts had been made after 1st April, 1930. It was also observed that s. 53a of T. P. Act applied to such an agreement of lease. This contention is unsuitable as it failed to notice that S. 53a of T. P. Act is applicable to the unregistered solenama containing the terms of settlement of suit premises for 16 years and as such there is no room for inferring a tenancy from the admitted possession and payment and acceptance of rent on the basis of the said contract. ( 34 ) IN the premises aforesaid all the contentions made on behalf of the appellant having failed the appeal is dismissed. The judgment and decree of the court of appeal below are affirmed. All interim orders are vacated. In the circumstances of the case there will be no order as to cost. ( 35 ) AS prayed for by the learned Advocate for the appellant let there be a stay of operation of the judgment and decree with regard to the eviction of the appellant from the suit premises for a period of four weeks from this date. But this will not prevent the respondents from taking steps for ascertainment of mesne profits. ( 36 ) THE appellant will go on depositing in the court below the sum of Rs. 1000/- (Rupees one thousand) month by month. ( 37 ) IF the aforesaid sum is being deposited, the respondents will be at liberty to withdraw the same as also the sums already deposited without furnishing any security and without prejudice to their rights and contentions. Let the records go down after the expiry of the period of four weeks from date. N. C. Mukherji, J: I agree. Appeal dismissed.