Sudhangsu Ranjan Paul v. Madhav Chandra Paul and Another
1990-06-07
B.P.SARAF
body1990
DigiLaw.ai
This revision petition arises out of the judgment and decree of the Assistant District Judge No. 1, Cachar dismissing the appeal filed by the petitioners and affirming the judgment and decree of the learned Sadar Munsiff No.2, Silchar directing ejectment of the petitioners from the suit premises. 2. The plaintiffs-opposite parties instituted a suit for ejectment of the defendants-petitioners from the suit premises and for realisation of arrear rent for the months of Bhadra and Aswin, 1388 B.S. The grounds on which eviction was sought for, were that the tenants were defaulters in payment of rent for the months of Bhadra and Aswin, 1388 B.S.; there was sub-letting of the suit premises in violation of the terms of the agreement and the house was required bonafide by the plaintiffs for their own use. The suit was contested by the defendants. Their case was that they had, in fact, paid the rent for Bhadra and Aswin though no receipt was granted for the same by the plaintiffs. They tried to rely on some entries in their books of account showing payment of the rent for the said two months. The allegation of sub-letting was denied. It was also denied that the bouse was bonafide required by the plaintiffs, on the ground that the plaintiff had their own shop house and premises apart from the suit house where they were already carrying on business besides having handsome rental income. In tha' view of the matter it was contended that the plea of bonafide requirement was not true and was a device to get a decree for ejectment of the defendants 3. The learned trial Court, on consideration of the evidence on record, arrived at a finding that the defendants were defaulters in payment of the rent for the months of Bhadra and Aswin. It was observed that all throughout in the past as and when rent was paid formal receipts had been obtained by the defendants who also signed on the counterfoil acknowledging the receipt. The learned trial Court rejected the plea of the defendants that the rent for the above two months had been paid. Accordingly the defendants were held to be defaulters.
The learned trial Court rejected the plea of the defendants that the rent for the above two months had been paid. Accordingly the defendants were held to be defaulters. The trial Court also arrived at a finding that a part of the suit premises had been sub-let to the defendants 6 and 7 without the permission of the plaintiffs which was one of the grounds for eviction under the Assam Urban Areas Rent Control Act, 1972 (hereinafter referred to as the 'Rent Control Act'). It also held that requirement of the suit premises by the plaintiffs was genuine and sincere and that it was not a pretence. Thus on all the three counts the trial Court decided in favour of the plaintiffs. Accordingly the suit of the plaintiffs for eviction o' the defendants and for recovery of arrear rent was decreed. 4. On appeal, the learned Assistant District Judge considered the entire facts and circumstances of the case afresh and affirmed the findings of the trial Court on all three counts. Accordingly the appeal was dismissed. Aggrieved by the concurrent findings of both the Courts below the defendants-tenants have approached this Court by Sling the present revision petition. 5. I have heard Mr. N.M. Lahiri, learned counsel for the petitioners as well as Mr. J.P. Bhattacharjee, learned counsel for the opposite parties. The first contention of Mr. Lahiri is that there was a Kirayanama (deed of lease) dated 1.12.80 between the landlords and the tenants. The term of lease according to the said Kirayanama was six years. There was also a clause therein providing for renewal of the lease for another six years. That being the position in regard to the duration of the lease in terms of the agreement of lease between the parties, learned counsel submits, no suit could be instituted for eviction of the petitioners who are tenants during the period of six years on the ground of non-payment of rent or otherwise. According to the learned counsel, in such an event the tenant shall be entitled to relief against forfeiture for non-payment of rent as provided under section I 14 of the Transfer of Property Act, 1882. (hereinafter referred to as 'the Act'). The submission of Mr.
According to the learned counsel, in such an event the tenant shall be entitled to relief against forfeiture for non-payment of rent as provided under section I 14 of the Transfer of Property Act, 1882. (hereinafter referred to as 'the Act'). The submission of Mr. J.P. Bhattacharjee, learned counsel for the opposite parties in this regard, firstly, is that such an argument is no more valid after the decision of the Supreme Court in V. Bhanapal Chettiar vs. Yesodai Ammal, AIR 1979 SC 1745 . Besides Mr. Bhattacharjee also objects to this submission of the learned counsel for the petitioners on the ground that it has been made for the first time before this Court in revision. No such plea had been taken earlier before either of the Courts below and, as such, the petitioners cannot be allowed to raise such a new plea in revision petition. On merits of this plea, the argument of Mr. Bhattacharjee can be summarised as follows. The Rent Control Act is a special statute and is a self contained code which governs-the relationship between the landlords and tenants. After the enactment of the said Act the only ground on which a tenant can be evicted are those set out therein. In that view of the matter a tenant cannot take shelter behind the provisions of the Transfer of Property Act when he becomes liable to eviction under the Rent Control Act. Secondly it is contended the Kirayanama dated 1.12 80 which is claimed to be for a term of six years on which the aforesaid argument is based, is not a registered agreement. Section 107 of the Transfer of Property Act clearly provides that a lease of immovable property for any term exceeding one year can be made only by a registered instrument. A periodic lease, which is not registered cannot, therefore, be treated as a lease for a term exceeding the year. It has to be deemed to be a lease for month to month. 6. I have considered the rival submissions of the learned counsel for the parties on this point. The questions of law raised above can be dealt with in two parts.
It has to be deemed to be a lease for month to month. 6. I have considered the rival submissions of the learned counsel for the parties on this point. The questions of law raised above can be dealt with in two parts. Firstly, what is the effect of non-registration of a lease for a term exceeding one year, secondly, whether the benefit of section 114 of the Act is available to a tenant in 'a case governed by the Rent Control Act. 7. For deciding the first question we may refer to section 107 of the Transfer of Property Act which provides : "A lease of immovable property ... for any term exceeding one year ... can be made only by a registered instrument." The language of section 107 is unambiguous and clear. Registration of a lease for a term exceeding one year is mandatory. Therefore a lease for a term exceeding one year, if not registered, has to be construed to be an oral one for month to month. This is also what has been held by this Court in Ramdhari Sarma vs. Jogendra Kumar Biswas, AIR 1959 Assam 174. In that case it was field that where a lease is not registered, an 1 inadmissible as such, even if it is a periodic lease, it must be held to be a lease from month to month from its very inception. Reference may also be made to another decision of this Court in Md. Azizul Haque vs. Debendra Kumar Pal, AIR 1959 Assam 57 wherein it was held that a lease will not b; recognised unless it conforms to the requirement of the Transfer of Property Act. A lease for more than one year, if not registered as required under section 107 of the Act, will be invalid and inoperative. The lease in such a case, by legal implication, would only be a monthly lease under section 106 of the Act. in view of the clear provisions of the Act and the decisions of this Court, I am of the clear opinion that the lease deed in question not being a registered one is inoperative and the term of six years contained therein cannot be enforced on the strength thereof.
in view of the clear provisions of the Act and the decisions of this Court, I am of the clear opinion that the lease deed in question not being a registered one is inoperative and the term of six years contained therein cannot be enforced on the strength thereof. The lease by inference of law shall be deemed to be a lease from month to month and, as such, the submissions based on the six year term of the lease shall not be available. 8. It may be appropriate at this stage to mention that even otherwise, it is well settled by now by the decision of the Supreme Court in D. Dhanapal Chettiar (Supra) wherein it was held that the termination of a lease in accordance with the Transfer of Property Act is unnecessary and a mere surplus age because the landlord cannot get eviction of the tenant even after such determination. The tenant continues to be so even thereafter. That being so, making out a case under the Rent Control Act for eviction of a tenant by itself is sufficient and it is not obligatory to found the proceeding on the basis of the determination of the lease under the Transfer of Property Act. 9. I am therefore, of the opinion that the submission of the learned counsel for the petitioners that in view of the six years term of the lease specified in the lease deed dated 1. 12. 80 the institution of the suit for eviction under the Rent Control Act during the term of said six years was bad, is not tenable. Firstly, the lease b;in3 not registered it has to be deemed to be a lease from month to month and not a lease for a term of six years; and secondly, even in a. case where the lease is for a specified period, the provisions of the Rent Control Act will govern the question of eviction of the tenant. Once the liability to be evicted is incurred by the tenant under the Rent Control Act he cannot turn wind and say that the contractual lease has not been determined. This view is fully supported by decisions referred to above. 10. I may now turn to the submissions of the learned counsel for the petitioners on the merits of the findings of the learned Courts below in regard to the three grounds of eviction.
This view is fully supported by decisions referred to above. 10. I may now turn to the submissions of the learned counsel for the petitioners on the merits of the findings of the learned Courts below in regard to the three grounds of eviction. The concurrent finding of both the Courts below was that the petitioners were defaulters in payment of rent; that the house was bonafide required by the landlords for the purpose of own use and occupation; and that there was sub-letting of the suit premises by the petitioners without the permission of the landlords. The submission of the learned counsel for the petitioners is that the findings are perverse. In regard to the finding of defaulter it is submitted that the Courts below should have relied on the entries in the accounts of the petitioners showing payment of rent and should have held that the petitioners were not defaulters. In regard to the bonafide requirement it is submitted that there being materials on record to show that the landlord had his existing business besides having sufficient rental income there was no pressing need of starting another business or in other words, there was no bonafide requirement for own use or occupation. So far as the finding regarding sub-letting is concerned, it was pointed out by the learned counsel that the defendants 6 and 7 were in occupation of the premises as sub-tenants even before the suit property was purchased by the plaintiffs and when the lease was granted to the petitioners. As such, there is no question of sub-letting by the petitioners after the commencement of the lease. I have considered the submissions of the learned counsel. I have perused the judgments of both the Courts below and the reasons given therein for the concurrent findings of fact. It appears that both the Courts below have carefully considered all the materials and evidence on record and arrived at findings of fact based on reasons that the petitioners were defaulters and that the house was bsnafide required by the landlords for their own occupation. According to me, under the facts and circumstances of the case, the learned Courts below were justified in arriving at the aforesaid findings. I, therefore, do not find any justifiable ground to interfere with the aforesaid concurrent findings of fact of both the Courts below.
According to me, under the facts and circumstances of the case, the learned Courts below were justified in arriving at the aforesaid findings. I, therefore, do not find any justifiable ground to interfere with the aforesaid concurrent findings of fact of both the Courts below. Though this alone would be sufficient for passing a decree for eviction, it may be appropriate to deal with the third ground also, namely, sub-letting as the same has been challenged by the learned counsel for the petitioners. It appears that the finding on this issue also is a concurrent finding of fact of both the Courts below. The finding is based on proper appreciation of the; evidence on record and submissions of parties. No case has been made out to justify any interference with the same in exercise of the regional jurisdiction. 11. I am, therefore, satisfied that the petitioners-defendants have failed to make out a case that the Courts below acted illegally or with material irregularity in exercise of their jurisdiction while passing the impugned judgments and decrees and arriving at the findings in course thereof. There is therefore, no justifiable ground to interfere with the judgments and decrees of the Courts below. 12. In the result, this revision petition fails and the same is accordingly dismissed. No order as to costs.