Syed Ahmed Ali v. Shafiq Ahmad — 1991 DIGILAW 803 (ALL)

JUDGMENT M.L. Bhat, J. - This second appeal is filed by the plaintiffs against the judgment and decree of IX Additional District Judge, Allahabad dated 16.8.1987. By the impugned judgment the first appellate Court while setting aside the judgment and decree of the Munsif dated 23.3.1984 dismissed the plaintiff's suit against the defendant for ejectment. 2. The following are substantial questions of law on which this appeal is to be decided : (i) Whether the agreement dated 31.10.1978 being unregistered and against the provisions of Sections 11 and 13 of the Act was void and could be looked in evidence ? (ii) Whether the small Kothri with a huge open land could bring the entire tenanted portion under the definition of 'building' within the provisions of the U.P. Act No. 13 of 1972 ? 3. For determination of the aforesaid questions it is necessary to deal briefly with the facts. The appellants filed a suit against the respondent-defendant alleging that the defendant was a tenant on monthly rent of Rs. 200/-. The property was let out for business purpose. However, there was no roofed structure in the property in dispute. A temporary structure measuring 10' x 6' was raised by the defendant in a small portion of the land in dispute without the permission of the appellants. It was contended that the provisions of the Rent Control Act 1972 did not apply to the property in dispute. The tenancy was terminated by a valid notice under Section 106 of the Transfer of Property Act dated 21.1.1983, which was served on the defendant on 4.2.1983. The respondent is said to have not vacated at the period of the expiry of the notice. The rent was also claimed from the respondent with effect from 1.11.1982. The amount of Rs. 821/- was also claimed from the defendant on account of arrears of rent. Pendente lite damage as also damages for future were also claimed from the defendant. 4. The defendant seems to have contested the suit. He seems to have contended that the property in dispute originally belong to Sri Wajid Ali, grand father of plaintiff Nos. 1 and 2, who had raised construction on plot No. 72/82, which was given a separate municipal number 132 and splitted into two numbers 204 and 205. 4. The defendant seems to have contested the suit. He seems to have contended that the property in dispute originally belong to Sri Wajid Ali, grand father of plaintiff Nos. 1 and 2, who had raised construction on plot No. 72/82, which was given a separate municipal number 132 and splitted into two numbers 204 and 205. According to the defendant he was a tenant of the entire premises covered by plot No. 204 but a portion of it was allowed to be occupied by the plaintiffs and the defendant retained a northern part of plot No. 104 and an agreement dated 31.10.1978 between the parties was also executed. The said Wajid Ali is said to have created a Waqf Alal Aulad of the property. Plaintiff 1 is said to be Mutwalli and Landlord of the defendant. Plaintiff Nos. 2 and 3 not the landlords. However, plaintiff No. 2 joined the agreement dated 31.10.1978. It is stated that the building with land was let out. Therefore, the suit was covered by the Rent Control Act of 1972. The agreement dated 31.10.1978 was relied upon. In the said agreement the intention of the parties, it is stated was that the defendant would not be ejected from the tenement unless he rendered himself liable to ejectment on any of the grounds specified in Section 20 of the U.P. Act No. 13 of 1972. Whether or not the U.P. Act No. 13 of 1972 would apply to the suit but the defendant could be ejected only on the grounds similar or analogous to the grounds contained to Section 20 of the U.P. Act No. 13 of 1972. The landlord mentioned in the agreement was treated as attached to the building for the beneficial enjoyment of the building, which was let out to the defendant. It was further contended that the property being waqf property the plaintiffs had no right to sue and maintain the suit. Arrears of rent had accumulated because of wrong refusal of the money order by the plaintiff No. 1. The trial Court framed certain issues in the suit. Issue No. 1 related to the plaintiffs' title as landlord over the suit, property. Issue No. 2 related to the application of the W.P. Act No. 13 of the 1972 to the suit. Issue No. 3 was about the plaintiff having no right to sue. The trial Court framed certain issues in the suit. Issue No. 1 related to the plaintiffs' title as landlord over the suit, property. Issue No. 2 related to the application of the W.P. Act No. 13 of the 1972 to the suit. Issue No. 3 was about the plaintiff having no right to sue. Issue No. 4 related to the validity of the notice. 5. About Issue No. 1 the trial Court had found that the plaintiffs were not the owners of the property but plaintiff No. 1 was mutwalli of the waqf property while the remaining plaintiffs were beneficiaries. It was held that the U.P. Act No. 13 of 1972 was applicable to the suit. The suit was held to be maintainable against the defendant and the notice was held to be valid. Arrears of rent were refused but damages for use and occupation during the pendency of the suit and in future were granted at the rate of Rs. 200/- per month. 6. Before the first appellate Court the learned counsel for the parties appear to have argued whether the suit was governed by the provisions of the W.P. Act No. 13 of 1972. If the said Act was applicable, the suit by the landlord against the tenant for eviction from the building after determination of tenancy is cognizable by the Small Causes Court. It defines 'building' to mean a residential or non-residential roofed structure which includes any land, garden, garage or out house appurtenant to such a building. 7. 'Building' is defined in the U.P. Act No 13 of 1972 also. It says that 'building' means a residential or non-residential roofed structure and includes (i) any land (excluding any garden), garage and out houses appurtenant to such building; (ii) any furniture supplied by the landlord for use in such building, & (iii) any fittings and fixtures affixed to such building for more beneficial enjoyment thereof. 8. The first appellate Court seems to have relied upon the agreement dated 31.10.1978 which according to the appellants is not admissible in evidence and is not a valid document. It relied on the agreement for the following facts : 9. The property in the tenancy of the defendant had been described as a house. 8. The first appellate Court seems to have relied upon the agreement dated 31.10.1978 which according to the appellants is not admissible in evidence and is not a valid document. It relied on the agreement for the following facts : 9. The property in the tenancy of the defendant had been described as a house. It is further provided that over the said property constructions are in existence and the land is attached to these constructions as 'Sahan' which is a part of the house. As such the U.P. Act No. 13 of 1972 is applicable. Southern part of the property which is shown a separate portion and marked by certain letters will be used by the plaintiffs and will not be let out to any other person. The parties were left free to conduct any business of their choice on their respective tenements. Rs. 200/- will be paid as rent by the defendant and the plaintiffs had agreed that the U.P. Act No. 13 of 1972 will apply to the tenements. Any suit for ejectment could be brought under the U.P. Act No. 13 of 1972. The defendant was given a right to construct any temporary shed. House tax was the responsibility of the plaintiffs. 10. Two substantial questions on which this second appeal was admitted relate to the validity of the agreement and whether the tenanted premises could be said to be building within the meaning of the U.P. Act No. 13 of 1972 so as to attract the provisions of the said Act. 11. I have heard the learned counsel for the parties and gone through the record. 12. The deed of agreement on which the first appellate Court has relied on is admittedly an unregistered document. An unregistered document when it confers, limits and extinguishes title in any person in the immovable property, the said document has to be compulsorily registered and if it is not registered, it cannot be received in evidence. It may, however, be looked into for collateral purposes. It was contended by the learned counsel for the appellants that the deed of agreement being unregistered was not correct in having relied on the contents of the unregistered document for the purposes of decision of the appeal. Some authorities on this question was cited at the Bar. In Zarif Ahmad and another v. Satish Kumar and another, reported in 1983(1) All. Some authorities on this question was cited at the Bar. In Zarif Ahmad and another v. Satish Kumar and another, reported in 1983(1) All. RC 422, it was held that the lease-deed in respect of immovable property for a period of less than a year, if made in writing, must be registered under Section 107. In Satish Chand Oakhan and others v. Goverdhan Das Byas and others, reported in 1984(1) All. RC 515, the Supreme Court was of the view that unregistered lease deed is inadmissible in evidence for proving the nature of possession also. The terms of the lease deed are not for collateral purposes. Such agreement cannot be looked into. In Budh Ram v. Ralla Ram, reported in 1987(2) All. RC 461, the Supreme Court has held that the lease deed, registration whereof was compulsory, was not admissible in evidence. In Jai Ram Agarwal v. VI Addl. District Judge, Allahabad reported in 1987(2) All. RC 506 it was held that unregistered lease-deed cannot be received in evidence. The terms of the lease cannot explain the collateral purpose. Therefore, Section 49 of the Registration Act also cannot make it admissible for collateral purpose. 13. The deed of agreement and its various clauses indicate that some rights are conferred, some extinguished and some others are created in favour of the parties. Therefore, the deed of agreement was compulsorily registerable under Section 17 of the Registration Act. It could not be received in evidence in the absence of its registration. However, it could be used for some collateral purpose. The collateral purpose must be such purpose which is not related to the terms of the agreement. The lease of agreement and its terms whereby it has created and limited the rights of the parties cannot be said to be capable of being used for the collateral purpose because the purpose for which it is sought to be used is the primary purpose of the document which is revealed from its contents. The collateral purpose is a purpose which was connected with the main purpose. The ingredients of the main purpose recited in the lease agreement cannot be said to be collateral to the controversy which is before the Court terms and conditions of the lease for which the first appellate Court has used the document cannot be said to be collateral purpose. The ingredients of the main purpose recited in the lease agreement cannot be said to be collateral to the controversy which is before the Court terms and conditions of the lease for which the first appellate Court has used the document cannot be said to be collateral purpose. Therefore, it cannot be received in evidence even under Section 49 of the Registration Act. That being so, the lease agreement could not be looked into for any purpose whatsoever by the first appellate Court nor could it be used for imposing any obligation on the parties to the document, by virtue of its terms and conditions, by the Court. The parties may out of Court choose to abide by the terms and conditions of the unregistered deed but that would not authorise the Court to use unregistered deed in evidence so as to impose any liability or obligation on any of the parties to the lease unless the document is used for collateral purpose which purpose must be unconnected and unrelated to the main purpose of the document. Therefore, the first question to be determined as substantial question of law is to be answered in favour to the plaintiffs and the plaintiffs have not incurred any obligation under the terms of the unregistered deed because such a deed cannot be used against him by the Court as it cannot be received in evidence. The first appellate Court, therefore, was wrong in relying on the terms of the unregistered deed to carve out a case for the defendant. 14. The second substantial question will be whether the U.P. Act No. 13 of the 1972 was applicable to the premises or not. From the record it appears that the defendant had taken a portion of the land for commercial purpose. The defendant is dealing in Ballis. The defendant had taken some land on lease and not the building, as suggested by the first appellate Court. It is in evidence of the parties that a small temporary shed was constructed by the defendant on 10' x 6' of the disputed land and its construction does not seem to have been consented to by the appellants. The open land which had been taken on lease cannot be said to be a building even though on small portion of the land a temporary shed was constructed. The open land which had been taken on lease cannot be said to be a building even though on small portion of the land a temporary shed was constructed. A building which could be brought under the purview of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, must be residential or non-residential and a roofed structure which would include land including any garden, garage and out-houses appurtenant to such building. The defendant is doing his business on a vast piece of land and on a small portion of it if he has constructed a shed also, that would not change the nature of the land into a building so as to attract the provisions of the U.P. Act No. 13 of 1972. The first appellate Court has been influenced by the terms and conditions of the unregistered deed and, therefore, it has held the disputed property as building within the meaning of the U.P. Act No. 13 of 1972. After excluding the unregistered, lease deed as inadmissible, the other evidence which is on record would positively suggest that the property in question is not a building within the meaning of the U.P. Act No. 13 of 1972 but is a land let out for commercial purpose. That being so, a suit under the Transfer of Property Act could be brought against the defendant-respondent by the plaintiff. 15. The substantial question No. 2 is also answered in favour of the appellants and it is held that the eviction proceedings in respect of the property in question would not be governed by the U.P. Act No. 13 of 1972. 16. The trial Court had the jurisdiction to try and decide the suit. The first appellate Court has wrongly assumed the trial Court's cognizance of the suit was barred because the suit was to be tried under the provisions of the Small Cause Courts Act and it would be governed by the U.P. Act No. 13 of 1972. 17. For the reasons stated above, the second appeal is allowed, the judgment and decree of the first appellate Court dated 19.8.1987 is set aside and that of the trial Court dated 23.3.1984 is restored. There will be no order as to costs.