Nand Lal Sharma v. Bajrang Lal — 1976 DIGILAW 27 (PAT)

JUDGMENT B.D. Singh, J. This appeal by Nand Lal Sharma, defendant No.1, is directed against the Judgment and decree of the lower appellate Court, affirming those of the trial Court. 2. In order to appreciate the points of law involved in this appeal, it will be necessary to state some material facts. Bajrang Lal, plaintiff respondent No.1, had instituted a suit against the defendant-appellant and others for declaration of his title in a house constructed with bamboo splinters, phoos and tin sheets bearing Municipal Holding No. 271, ward No.6, constructed on plot No. 162, Khata No. 20, measuring 5 dhurs (equivalent to two decimals) of land, in Mohalla Gopalpur, within Motihari town, and for a further declaration that the defendants had got no right, title and interest in the suit property. The plaintiff also prayed for a declaration that the defendant No.1 was the tenant of the plaintiff up to the 30th April 1957, whereas defendants No.2 and 3 were sub-lessees of defendant No.1 and their possession over the suit land and the house standing thereon was illegal. He also prayed for a decree for recovery of possession over the suit premises, and that he might be put in possession over the suit premises through the process of the Court and for a decree for Rs. 400/- being the house rent detailed at the foot of the plaint. He has also prayed for awarding damages from the date of institution of the suit till the recovery of possession by appointment of a pleader commissioner, besides the costs of the suit. 3. According to the plaintiff, he purchased 5 dhurs of land of plot No. 162 on the 6th of May 1937 from Jhapasi Mian along with other lands. The plaintiff paid the consideration money, and came in possession of the land detailed in schedule 1 of the plaint. He constructed a structure, made out of split bamboo and tin-sheds over the land so purchased, the house was recorded in the records of the Motihari Municipality bearing Holding No. 271, within Ward No.6. The defendant No.1 was a sweet-meat seller. He came to the plaintiff and requested him to give Holding No. 271 to him on rent. The plaintiff accepted the request of defendant No.1 and rented the house in the month of October, 1955 at the rate of Rs. 30/- per month. The defendant No.1 was a sweet-meat seller. He came to the plaintiff and requested him to give Holding No. 271 to him on rent. The plaintiff accepted the request of defendant No.1 and rented the house in the month of October, 1955 at the rate of Rs. 30/- per month. In proof of it, the defendant No.1 executed a Kirayanama dated the 1st of October, 1955 (Ext. 6) in favour of the plaintiff. The defendant No.1 put his signature in his own pen and handed it over to the plaintiff. It was settled between the plaintiff and defendant No.1 that the rent would be paid on the 5th of every following month, and in default, the plaintiff would be entitled to evict the defendant No.1, without giving any notice and would take khas possession of the premises. Since then, the defendant No.1 lived in the suit premises as a monthly tenancy. Thereafter, the defendant No.1 began to make default in payment of monthly rent and had not paid a single farthing since the date of taking the house on rent. On demand being made by the plaintiff, the defendant No.1 went on putting off the matter on one pretext or the other. The plaintiff, however, allowed the defendant No.1 to live in the houses, and allowed him to hold over as his tenant. The plaintiff himself subsequently was in need of the house for the purpose of opening a shop in it. Therefore, he sent a notice to defendant No. 1 on the 11th of April, 1957 through his lawyer by a registered post and also demanded Rs. 570/- being the rent up to the 30th April 1957. The plaintiff requested the defendant No.1 to vacate the house by the 30th of April 1957 and to put the plaintiff in possession of the same by the 1st of May 1957, but the defendant. No.1 sent a reply to the notice of the plaintiff through his lawyer that defendant No.1 had purchased the suit land for Rs. 500/- orally from the plaintiff in the year 1944, had constructed the house thereon, and was living therein. The defendant No.1 denied that he was the tenant of the plaintiff, and set up his own title in the suit land, and refused to give up possession. 500/- orally from the plaintiff in the year 1944, had constructed the house thereon, and was living therein. The defendant No.1 denied that he was the tenant of the plaintiff, and set up his own title in the suit land, and refused to give up possession. That attitude of the defendant No.1, necessitated the filing of the suit by the plaintiff with the prayers referred to above. 4. The suit was mainly resisted by defendant No. 1, although written statement was filed by all the defendants. Their defence, inter alia, was that the suit, as framed, was aot maintainable and was liable to be dismissed, and that the claim of the plaintiff was barred by limitation. Their further defence was that there was no relationship of landlord and tenant between the plaintiff and defendant No.1. According to the defendants, the plaintiff had not made any construction over the suit premises and the same was lying parti. So there was a talk between the plaintiff and defendant No.1 in the month of April, 1944 and Rs. 500/- was settled as the price of the suit premises, which was paid by defendant no. 1 to the plaintiff. The plaintiff granted a receipt for Rs. 500/- to defendant No.1 and promised that within a month he would execute a sale deed. According to the defendant No.1, at the time of the talk of sale between the plaintiff and the defendant no.1 the sale deed of the plaintiff dated the 6th of May, 1937 was misplaced, and as defendant no. 1 was demanding that sale deed, the plaintiff asked for time for one month. The defendant No.1 being a simple and poor man, relied upon the plaintiff but the sale deed was not executed in his favour. According to the defendant No. 1 he filled up the ditch and spent about Rs. 100/- on it. There was some Gairmazrua land by the side of the suit land and defendant no.1 took that Gairmazrua land in his possession and on about 7 dhurs of land, he constructed the house at his own cost. He had to spend Rs. 500/- in purchasing materials of the house and made certain fittings in the house at his own cost. Subsequently, he opened a sweet meat shop in that house. He had no other house in Motihari town. According to the defendant No.1. the receipt of Rs. He had to spend Rs. 500/- in purchasing materials of the house and made certain fittings in the house at his own cost. Subsequently, he opened a sweet meat shop in that house. He had no other house in Motihari town. According to the defendant No.1. the receipt of Rs. 500/- which had been granted by the plaintiff to him was also lost and he was in possession over the land for the last 14 years continuously, and so even if the plaintiff had any title in the suit land, that was extinguished by adverse possession. The house standing on the suit land belonged to defendant No.1 and so he had got every right to sub-let it to defendant Nos. 2 and 3, who were the tenants of defendant No.1. The plaintiff never demanded any rent from defendant No.1, nor any rent was ever paid by him. He also alleged that the Kirayanama (Ext. 6) was forged and fraudulent and he had never executed any Kirayanama in favour of the plaintiff. 5. Both parties filed documentary evidence and adduced oral evidence on their behalf. On a consideration of the entire evidence, the trial Court decreed the suit and held that the plaintiff had got right, title and interest in the suit land and defendant No. 1 had got no interest in it. It also held that the plaintiff was entitled to realise the rent from the defendant No.1 at the rate of Rs. 30/- per month up to the 30th April, 1957, but he would realise Rs. 400/- only which he had claimed. It further held that the plaintiff was entitled to damages at the rate of Rs. 1/per day after the 30th April, 1957 till recovery of possession by the plaintiff, and the defendant No.1 was directed to give up possession of the suit land within three months of the passing of the order, failing which the plaintiff would be put in possession through the process of the court at the cost of the defendant No.1. 6. Being aggrieved by the judgment and decree of, the trial Court, the defendant No.1 preferred Title Appeal No. 109/8 of 1965/68. The learned Additional Subordinate Judge by his judgment and decree dated the 27th November, 1968 allowed the appeal and set aside the judgment and decree of the trial Court. 6. Being aggrieved by the judgment and decree of, the trial Court, the defendant No.1 preferred Title Appeal No. 109/8 of 1965/68. The learned Additional Subordinate Judge by his judgment and decree dated the 27th November, 1968 allowed the appeal and set aside the judgment and decree of the trial Court. Aggrieved by the judgment and decree of the appellate court, the plaintiff preferred Second Appeal No. 14 of 1969 in this Court. B.N. Jha, J. who heard the second appeal, observed as follows in paragraph 2 of his judgment dated the 22nd July, 1971. : "The lower appellate Court has been greatly influenced by the fact that the plaintiff failed to establish the relationship of landlord and tenant in the case. Learned counsel for the appellant submitted that even if the plaintiff fails to establish the relationship of landlord and tenant, the plaintiff is entitled to succed on the strength of his own title if he so establishes. Admittedly the title of the suit land was with the plaintiff. Therefore, it is for the defendant to establish how the title of the plaintiff was lost, either by adverse possession or by purchase or any suitable way. But simply because the plaintiff-appellant failed to establish the relationship of landlord and tenant between the parties, the suit of the plaintiff for possession cannot be thrown out". He, accordingly, set aside the Judgment and decree of the appellate Court and remanded the case back to it for fresh decision in accordance with Jaw. Before, B.N. Jha, J. it was contended on behalf of the plaintiff-appellant that the defendant had given up his case of adverse possession before the trial Court. On the other hand, learned counsel appearing for the defendant-respondent had submitted that the defendant had not given up the case of adverse possession. According to his sub• mission, the question of adverse possession was implicit in the very defence of the fact that the defendant claimed the property by purchase, and the purchase not being by a registered document, was invalid, but the defendant claimed title on account of the fact that he remained there in possession of the land for more than twelve years. B.N. Jha, J. had observed in that connection that it was not necessary for him to express any opinion on the contentions raised by the parties in view of the order of remand, which he was passing, and it was for the lower appellate Court to consider that aspect of the case also. 7. On remand, the appeal was again heard by the learned Additional Subordinate Judge, Third Court, who after hearing the parties and considering the evidence on record, dismissed the appeal filed by defendant No. 1 and affirmed the findings of the trial Court. Hence this second appeal by defendant No.1. 8. Mr. S.K. Sarkar appearing on behalf of the appellant has assailed the judgment and decree of the appellate Court. He submitted that the court below has erred in basing its findings on inadmissible document. He submitted that the Kirayanama (Ext. 6) was not admissible under section 49 of the Registration Act, read with section 107 of the Transfer of Property Act. He urged that under section 91 of the Evidence Act, no oral evide cenregarding the Kirayanama (Ext. 6) could have been entertained. In the instant case, there being admittedly no payment of rent, Ext. 6 could not have been used even for collateral purposes namely, for ascertaining the relationship of landlord and tenant. Learned counsel submitted that it is true that if the lessee failed to establish tenancy, he could recover possession on the basis of his subsisting title to the suit land on payment of proper court-fee, but in the instant case, the defendant appellant had perfected his title by adverse possession. In order to find support to his contention, learned counsel has referred to a full Bench decision of this Court in Bastacolla Colliery Co. Ltd. Vs. Bandhu Beldar and another, A.I.R. 1960 Patna 344 (F.B.) and drew my attention to paragraph 12 of the judgment at page 348, wherein it was observed that the possession of a lessee became wrongful from the time of his entry on the basis of a void or invalid lease; but, if he paid rent, which was accepted by the lessor, his possession ceased to be adverse to the lessor, and a relationship of land lord and tenant came into existence. In other words, he no longer remained a trespasser but he became a tenant. In other words, he no longer remained a trespasser but he became a tenant. In this connection learned counsel also referred to another Full Bench decision of this court in Mt. Ugni and another v. Chowa Mahto and others, A.I.R. 1968 Patna 302 (F.B.) where it was observed that if a lease was not registered and was, therefore, inadmissible as evidence of title, it would always be open to the tenant concerned to show that he obtained raiyati interest on the strength of actual possession and acceptance of rent by the landlord. 9. The aforesaid cases have been cited by the learned counsel for the appellant to show that in the present case since no rent was paid by the plaintiff to the defendant No.1 in respect of the house in question, the relationship of landlord and tenant was not established and the kirayanama (Ext. 6) could not be used even for collateral purposes. In A.I.R. 1968 Pat. 302 (supra) there is also consideration of the provision contained in section 91 of the Evidence Act, and it was observed there that section 91 only excludes other evidence of terms of a document, but not of existence of the contract or the relationship of landlord and tenant brought about by possession and payment of rent. Learned counsel pointed out that in the present case also payment of rent by the plaintiff to the defendant No.1 in respect of the house in question was an essential element. 10. Learned counsel also drew my attention to the decision in Mt. Nasiban vs. Mohammad Sayed, A.I.R. 1936 Nag. 174 where Vivin Bose, J. observed that the effect of section 107 of the Transfer of Property Act, and section 17 (d) of the Registration Act, was to exclude from evidence all unregistered leases which had been reduced to writing. A rent not purporting to grant lease of property for 11 months, which was not registered, did not operate as a lease and was inadmissible in evidence to prove the period for which the lease was granted and the rent due under it. In this connection he has also relied upon a Full Bench decision of the Madhya Pradesh High Court in Sardar Amar Singh and another Vs. Smt. Surinder Kuar, A.I.R. 1975 Madh. Pr. 230 (F.B.) where the aforesaid decision reported in A.I.R. 1936 Nagpur 174 (supra) was also followed. In this connection he has also relied upon a Full Bench decision of the Madhya Pradesh High Court in Sardar Amar Singh and another Vs. Smt. Surinder Kuar, A.I.R. 1975 Madh. Pr. 230 (F.B.) where the aforesaid decision reported in A.I.R. 1936 Nagpur 174 (supra) was also followed. Their Lordships observed that all other leases whose registration was not compulsory under section 17 (I)(d) of the Registration Act, became compulsorily registrable if reduced into writing by virtue of second paragraph of section 107 of the Transfer of Property Act, read with paragraph (2) of section 4 thereof and, therefore, the effect was to exclude from evidence all unregistered leases which were reduced into writing. Learned counsel for the appellant has also pointed out that in the, present case since the defendant No.1 was already in possession of the house in question prior to coming into existence of the Kirayanama (Ext. 6), the nature of adverse possession could not have been altered by the introduction of Ext.6. In order to find support to this part of his submission, he relied upon the decision of the Supreme Court in Mossomat Kirpal Kuer vs. Bachan Singh and others, A.I.R. 1958 S.C. 199 where it was observed that the agreement between the parties could not be admitted in evidence to show the nature of possession of one of the parties subsequent to its date, and the party being in possession before the date of the document, to admit it in evidence to show the nature of her possession subsequent to it would be to treat it as operating to destroy the nature of the previous possession and to convert what had started as adverse possession into a permissive possession and, therefore, to give effect to the agreement contained in it, which admittedly could not be done for want of registration. To admit it in evidence for the purpose sought would really amount to getting round the statutory bar imposed by section 49 of the Registration Act. 11. Mr. J.C. Sinha appearing on behalf of the plaintiff-respondent, on the other hand, has submitted that in the present case the suit was not based on the Kirayanama (Ext. 6), but it was based on oral settlement followed by delivery of possession, and the Kirayanama was executed merely as a proof of such settlement. He submitted that even if no payment of rent was made, Ext. 6), but it was based on oral settlement followed by delivery of possession, and the Kirayanama was executed merely as a proof of such settlement. He submitted that even if no payment of rent was made, Ext. 6 could have been used for collateral purpose, i.e. in order to find out the relationships of landlord and tenant between the parties. In order to find support to his submission Mr. Sinha has drawn my attention to the pleadings of the plaintiff in his plaint. He also drew my attention to paragraph 2 of the trial court judgment where the case of the plaintiff has been stated. It is mentioned therein that defendant no.1, who was a sweet meat seller, approached the plaintiff and requested him to give Holding No. 271 detailed in schedule 1 of the plaint to him on rent. The plaintiff accepted the request of the defendant No.1 and rented the house to him in the month of October, 1955, at a rent of Rs. 30/- per month. In proof of it, the defendant No.1 executed a Kirayanama dated 1.10.1955 in favour of the plaintiff, put his signature per his own pen and handed it over to the plaintiff. He submitted that if the findings of the Courts below were based exclusively on the Kirayanama (Ext.6), certainly those findings could not have been valid as was held in the Full Bench decision of this court in the case of Mossomat Ugni, A.I.R. 1968 Pat. 302 (F.B.) or in a Bench decision of this Court in Babu Jagatanand vs. Satyanarainji and Lakshmiji, 1961 B.L.J.R. 219. In the present case, however by reference to the plaint itself, it is clear that the agreement was not based on the Kirayanama (Ext.). Ext. 6 was used only as a proof of the said agreement between the plaintiff and defendant No.1 Mr. Sinha also submitted that payment of rent is not an essential element for element for creating tenancy, but it is only one the proof, of letting out. Delivery of possession is an essential element in such cases. In order to find support to his submission he has relied upon a Bench decision of this court in Mohammad Hanif and another Vs. Khairat Ali, A.I.R. 1941 Pat. Delivery of possession is an essential element in such cases. In order to find support to his submission he has relied upon a Bench decision of this court in Mohammad Hanif and another Vs. Khairat Ali, A.I.R. 1941 Pat. 577, and has drawn my attention to the observations made at page 590, where it was observed as follows:- "It is to be remembered that the actual words used in S. 107, T.P. Act, are 'oral agreement accompanied by delivery of possession' and not 'oral lease accompanied by delivery of possession'. This shows that delivery of possession is necessary to complete the transaction and without such delivery of possession the transaction will merely amount to an oral agreement and not a complete lease." Mr. Sinha has also referred to paragraph 10 of the Full Bench decision in, wherein it was observed that if, however, the lease was not registered, and was, therefore, inadmissible as evidence of title, it would always be open to the tenant concerned to show that he obtained raiyati interest on the strength of actual possession and acceptance of rent by the landlord. Learned counsel submitted that by the aforesaid observation, it does not mean that payment of rent is an essential element. It simply meant that the payment of rent in such cases would be a proof of acquiring raiyati interest. 12. In my view, the submission of Mr. Sinha on the facts and in the circumstances of the instant case appears to be correct. By reference to the pleadings of the plaintiff, it is clear that the agreement between the parties was not based on Ext. 6. Besides, in the instant case, the lower appellate court has come to the finding on the basis of the oral evidence adduced by the parties that the defendant No.1 was a tenant of the plaintiff on a monthly rental of Rs. 30/- and had defaulted in payment of rent. 13. Reference may also be made to the full Bench decision of the Madhya Pradesh High Court in A.I.R. 1975 M.P. 230 (supra), on which reliance was placed on behalf of the appellant. 30/- and had defaulted in payment of rent. 13. Reference may also be made to the full Bench decision of the Madhya Pradesh High Court in A.I.R. 1975 M.P. 230 (supra), on which reliance was placed on behalf of the appellant. In paragraph 10 of the report, it was observed that the defendants being the owner of the suit house, were in its possession and the sale deed which was a bogus document executed by way of security to the loan transactions was not intended to be acted upon and it was further urged that the defendants were not put in actual possession under the oral lease and the lease deed which purported to effect the transfer in present case being not registered, could not be admitted in evidence to prove delivery of possession as tenants of the plaintiff. Their Lordships observed that in their opinion, that contention had no force. The plaintiff having already pleaded oral tenancy prior to the execution of the lease deed, it was for the plaintiff to lead evidence in support of it and it was for the trial Court to decide that point. Reference may also be made to paragraph 6 of the report where it was observed that the law was, therefore, well settled that an unregistered lease deed could be admitted in evidence to prove the collateral transaction. Now the question which arose for consideration was what was a collateral purpose and to what extent oral evidence could be allowed. Their Lordships had quoted in this connection the Indian Registration Act, by Mulla (7th Edition) which stated at pages 204 and 205 as under : Where a document is inadmissible in evidence for want of registration, no oral evidence can be received, having regard to section 91 of the Indian Evidence Act, 1872, of the terms of the transfer effected by the document, whether it be a sale, mortgage or any other transfer. Similarly, where a deed of partition is not registered, oral evidence is not admissible to establish the plaintiff's title to any of the immovable properties allotted to him under the deed. But though a document which requires registration is not registered, oral evidence is admissible to prove facts which do not constitute the terms of the document. Similarly, where a deed of partition is not registered, oral evidence is not admissible to establish the plaintiff's title to any of the immovable properties allotted to him under the deed. But though a document which requires registration is not registered, oral evidence is admissible to prove facts which do not constitute the terms of the document. Thus, the fact of partition may be proved by oral evidence although the deed embodying the terms of partition cannot be proved for want of registration. The principle is that the fact of the existence of a particular relationship may be shown by oral evidence, though the terms which govern such relationship appear to be in writing. Thus a tenancy may be proved by oral evidence though there is a lease which is unregistered. Similarly where a tenancy is admitted, the nature of the tenancy, e.g. whether the rent is liable to enhancement, may be proved without putting the lease in evidence. But rent reserved by an unregistered lease cannot be proved by oral evidence, for it is a term of the lease. A landlord, therefore, under an unregistered lease, to whom rent is due, can not recover the rent payable under the lease; he is entitled to recover only as for use and occupation, but he may use the unregistered lease for the collateral purpose of ascertaining the fair amount of compensation for use and occupation." In a Full Bench decision of the Lahore High Court in Mohan Lal Vs. Ganda Singh, A.I.R. 1943 Lah. 127 (F.B.), it was observed that a rent deed executed by a tenant in favour of a landlord if not registered, could be relied upon to establish the relationship existing between the parties, as it contained an admission or an acknowledgement by the person attempted to be made liable and should be the very best evidence that one could possibly have as to the oral agreement of a lease and a Court was not prevented from looking into it for that purpose. 14. Learned counsel for the appellant has also made a grievance that on remand, the appellate Court has not considered the question of adverse possession. 14. Learned counsel for the appellant has also made a grievance that on remand, the appellate Court has not considered the question of adverse possession. In my view, that grievance is not tenable in view of the fact that on reference to paragraph 15 of the appellate Court's judgment, it is clear that the question of adverse possession was considered, wherein it has observed that the appellant's claim of adverse possession could have no bearing in the face of the conclusion to which it had arrived at namely, that the defendant No.1 had failed to establish that the suit land was sold to him and he was in possession there of as a purchaser, and that he was in possession of the house in question only as a tenant. Therefore, the appellate Court rightly came to the conclusion that there was no merit in the claim of adverse possession of the defendant appellant. In my view, therefore, the observations made by their Lordships in AIR 1960 Pat. 344 and AIR 1958 SC 199 (supra) are of no avail. 15. The contention of the learned counsel for the appellant, however, is that the lower appellate Court should not have granted a decree for rent in the instant case as, according to him, the rent of Rs. 30/- per month was one of the terms contained in the Kirayanama (Ext. 6) and that obviously can not be said to be a collateral purpose and the same was inadmissible in evidence. In my view, this contention of the learned counsel for the appellant is well-founded. The decree for rent to the extent of Rs. 400/- in favour of the plaintiff, therefore, cannot be sustained. 16. Now remains the controversy between the parties with regard to the damages which has been awarded to the plaintiff by the appellate Court. According to the decree of the appellate Court, the damages that has been awarded to the plaintiff is Rs. 5,855/- after the 30th April 1957 upto the 11th May 1972 at the rate of Rs. 1/- per day and future damages at the same rate till recovery of possession over the suit house. Learned counsel for the appellant submitted that while awarding damages, the lower appellate Court has taken into consideration the term of the Kirayanama (Ext. 5,855/- after the 30th April 1957 upto the 11th May 1972 at the rate of Rs. 1/- per day and future damages at the same rate till recovery of possession over the suit house. Learned counsel for the appellant submitted that while awarding damages, the lower appellate Court has taken into consideration the term of the Kirayanama (Ext. 6) namely, the rent payable per month, and it is only on the basis of the rent of Rs. 30/- per month that it has awarded Rs. 1/- per day has been fixed by reference to the rent fixed in Ext. 6. It may be a coincidence that the rate of damages allowed fits in with the rate of rent stipulated in Ext. 6. Damages awarded in such cases is within the discretion of the "Court" and it is only due to long lapse of time that the amount has swollen up. On the facts and circumstances of the present case, however, in my opinion, the ends of justice will be met if instead of Rs. 1/- per day, damages is awarded at the rate of 0-50 paise per day. In that way, the amount of damages awarded to the plaintiff is reduced to half. The plaintiff would be also entitled to damages from the defendant No.1 at the reduced rate till the recovers possession over the house in suit. 17. In the result, subject to the modification as indicated above with regard to the rate of damages and the arrears of rent, this appeal is dismissed with costs. Appeal dismissed. Decree modified.