Nitya Nand Sinha v. Khitism Chandra Ghosh — 1995 DIGILAW 481 (PAT)

Judgment S.K.Homchaudhuri, J. 1. It is regrettable that this second appeal has been pending disposal in this Court for about 13 years. This case reveals the long legal battle between the land-lord and the tenant. While the Respondent-land-lord, an old person, after retirement from service, with the desire to occupy his residential house in the city, instituted the suit 18 years back, the tenant a local Advocate, successfully resisted the landlord, although he had built his own residential house in the city before institution of the suit. 2. The plaintiff-respondent instituted Title Suit No. 103 of 1977 in the court of the learned Munsif for a decree for recovery of Khas possession of the suit premises fully described to the schedule of the plaint, after evicting the defendant-appellant therfrom. The case of the plaintiff was that the defendant was the tenant in respect of the suit premises for a specified period of eleven months commencing from 1.4.1976 at a monthly rental of Rs. 25.00 . But after expiry of the specified period of lease on 28.2.1977, the defendant did not vacate the suit premises although the defendant had constructed his own house and promised to vacate the tenanted premises after expiry of the period of lease. Further, the plaintiff reasonably and in good faith required the suit premises for his own use and occupation. 3. The defendant-appellant having failed to file written statement for a considerable time, the suit was heard ex-parte by the learned Munsif and during ex-parte hearing, the Memorandum of settlement of oral lease for the specified period of eleven months commencing from 1.4.1976 was filed and proved and marked as Ext. 1. However, before passing ex-parte judgment, the defendant having filed written statement, the suit was heard on merit. In the hearing of the suit on merit, the plaintiff-respondent besides adducing oral and other documentary evidences, proved execution of the Memorandum of oral lease, but same being an unregistered instrument, the learned Munsif did not admit thereof in evidence and the document was marked as Ext. X-1. The learned Munsif after conclusion of the hearing, by the judgment dated 7.5.1980 dismissed the plaintiffs suit holding that tenancy was not for specified period but from month to month and the plaintiff failed to establish that he reasonably required the suit premises for his own use and occupation. 4. X-1. The learned Munsif after conclusion of the hearing, by the judgment dated 7.5.1980 dismissed the plaintiffs suit holding that tenancy was not for specified period but from month to month and the plaintiff failed to establish that he reasonably required the suit premises for his own use and occupation. 4. The plaintiff-respondent impugned the judgment and decree passed by the learned Munsif in Title Appeal No. 97 of 1980 and the learned Additional Judicial Commissioner, Ranchi, the appellate court below, by the impugned judgment dated 10th May, 1982, admitted the memorandum of oral lease in evidence (marked as Ext. 7) and on consideration of the evidence on record, allowed the appeal and set aside the judgment and decree passed by the learned Munsif and decreed the plaintiffs suit. 5. The defendant-appellant has, thereafter, approached this Court in this second appeal. 6. Undisputedly, the plaintiff is the landlord of the suit premises and the defendant was inducted as tenant therein and the tenancy is governed by the State Rent Act, namely, the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 (hereinafter referred to as the Act). Sub-sec. (1) of Sec. 11 of the Act provides that notwithstanding anything contained in any contract or law to the contrary but subject to the provisions of the Industrial Disputes Act and to those of Sec. 18, where a tenant is in possession of any building, he shall not be liable to eviction therefrom except in execution of a decree passed by the court only on one or more of the grounds enumerated in Sub-sec. (1) of Sec. 11. Under ground No. (e) enumerated in Sub-sec. (1) of Sec. 11 of the Act, a tenant holding on a lease for a specified period is liable to be evicted after expiry of the period of tenancy. 7. We heard the learned Counsel for the appellant and the learned Counsel for the Respondent. 8. Learned Counsel for the appellant submitted that the learned appellate court below has erred in law in admitting the unregistered memorandum of oral lease purporting to create lease for a period of eleven months; inasmuch as under Sec. 107 of the T.P. Act, lease of immovable property for a tenure of 11 months can be made by oral agreement or by a registered instrument. The memorandum of oral lease not being a registered instrument it did not create any lease and was not admissible in evidence so as to form the basis of eviction. In support of the contention learned Counsel for the appellant has placed reliance on the decision of this Court in the case of Babu Jagatanand V/s. Satyanarainji and Laxmiji reported in 1961 B.L.J.R. 219, wherein a Division Bench of this Court held that a lease created even for less than a year on the basis of Kirayanama, required registration under Sec. 49 of the Registration Act. The learned Counsel for the appellate has also placed reliance on the decision of this Court in the case of Rajendra Be hi @ Bahal V/s. Deshraj Singh,tcpotted in 1989 P.LJ.R. 1162, wherein a Single Bench of this Court held that lease of a building to which the provisions of Bihar Rent Control Laws are attracted, must be created in one or other manner provided in Sec. 107 of the Transfer of Property Act and, as such, a lease made for a period of one year or less than a year, instrument must be registered. In that decision, it has further been held that in view of the decision of the Hon ble Supreme Court in the case of V. Dhanpal Chettiar V/s. Yesodai Ammal, , the decision of Division Bench of this Court in the case of Om Prakash V/s. Judicial Commissioner Patna Division , no longer held the field. 9. Learned Counsel for the Respondent, on the other hand, submitted that the suit having been instituted for recovery of khas possession of the premises in question on the ground specified in Clauses (c) & (e) enumerated in Sub-sec. (1) of Sec. 11 of the Act, the suit deemed to have been disposed of under the special procedure as provided under Sec. 14 of the Act. Sub-sec. (8) of Sec. 14 of the Act, having provided that no appeal or second appeal shall lie against an order for the recovery of possession of any premises made in accordance with procedure specified in Sec. 14 of the Act, second appeal is not maintainable. Sub-sec. (8) of Sec. 14 of the Act, having provided that no appeal or second appeal shall lie against an order for the recovery of possession of any premises made in accordance with procedure specified in Sec. 14 of the Act, second appeal is not maintainable. Learned Counsel for the Respondent further submitted that it would be evidence from the plaint of the suit that the suit founded on the basis of lease made by oral agreement for a specified period of 11 months commencing from 1.4.1976 and not on Ext. 7 and, as such Ext. 7 is admissible in evidence for collateral purpose. Execution of Ext. 7 has not been denied and the execution thereof by the plaintiff and the defendant has been provided. The defendant-appellant in this case did not examine himself in the suit. There is no infirmity in the impugned decree, which merits interference. 10. In support of the contention that the suit is maintainable, learned Counsel for the Respondent placed reliance on a decision of this Court in the case of Jai Prakash Jalan V/s. Rambilash Madan Gopal, reported in 1991 (2) PLJR Page-224, wherein a Division Bench of this Court held that if a decree for eviction is passed for the first time by appellate court, remedy of tenant was to file a revision application under Sec. 14(8) of the Act. Learned Counsel for the appellant, on the other hand, drew our attention to a decision of a Single Bench of this Court in the case of Md. Akhiar Khan V/s. Md. Slamul Haque, reported in 1984 PLJR Page-64, wherein it is held that the procedure laid down under Sub-sections (4), (5), (6) and (7) of Sec. 14 of the Act is the heart of the matter to attract Sub-sec. (8) and if that is not followed for the trial of the case then it is obvious that the bar of Sub-sec. (8) of Sec. 14 of the Act should not be made applicable. Learned Counsel for the appellant submitted that in the instant case the suit was not decreed by following the procedure under Sub-sections (4), (5), (6) and (7) of Sec. 14 of the Act and, as such, the bar under Sub-sec. (8) of Sec. 14 of the Act to prefer appeal or second appeal against an order for the recovery of possession of any premises is not attracted. 11. (8) of Sec. 14 of the Act to prefer appeal or second appeal against an order for the recovery of possession of any premises is not attracted. 11. I find force in the submission of the learned Counsel for the appellant on this point. Besides, even if the appeal is not maintainable, on the question of law raised in the second appeal, the revision application against the impugned judgment is competent and this Court, in the interest of justice, may convert the second appeal into revision application. Therefore, the point of maintainability of the second appeal is rather academic. 12. Now, it is to be examined as to whether Ext. 7 was admissible in evidence or not? Admittedly, Ext. 7 was executed by both the plaintiff and the defendant. On perusal of the plaint, I find that the suit was instituted with the pleading that as per the term of oral agreement, the lease was made for a specified period of 11 months and on expiry thereof, the defendant had to vacate the premises on 28.2.1977. The defendant haying refused to vacate the premises after the expiry of the period of lease, the suit was instituted for his eviction on the ground enumerated in Clause (e) of Sub-sec. (1) of Sec. 11 of the Act. In the case of Om Prakash (supra), a Division Bench of this Court held that the Bihar Buildings (Lease, Rent and Eviction) Act, 1947 (Bihar Act 3 of 1947) was a complete Act by itself and was not dependent on any other Act for the purpose of working out the provisions contained therein. When, therefore, a case was governed by the provision of Bihar Act 3 of 1947, the Tribunals, which were created by a special statute, were entitled under law to take into consideration the unregistered deed of agreement in order to arrive at the conclusion whether it created a month to month tenancy or a tenancy for a specified period. It has further been held that non-registration of the deed of agreement did not debar the landlord from establishing the period for which the tenancy was created. 13. Learned Counsel for the appellant, however,. It has further been held that non-registration of the deed of agreement did not debar the landlord from establishing the period for which the tenancy was created. 13. Learned Counsel for the appellant, however,. submitted that Clause (e) of Sub-section (1) of Sec. 11 of the Act provided that in case of tenant holding on a lease for specified period, the tenant is liable to be evicted on expiry of the period of tenancy and that in the absence of definition thereof in the Act, the term lease mentioned in that clause has to be taken as the lease as provided under the T.P. Act. Admittedly, the document (Ext. 7) having not been registered, it did not create any lease for the specified period. The creation of lease by oral agreement cannot be accepted; inasmuch as there is no averment in the plaint that the lease was accompanied by delivery of possession. Learning counsel drew our attention to paragraph 5 of decision of the Supreme Court in the case of V. Dhanapal Chettiar (supra), wherein the Supreme Court has observed that none of State Rent Acts had abrogated or affected the provision of Sec. 107 of the T.P. Act, and submitted that provision of Sec. 107 of the T.P. Act holds the field in the case of lease made under the provisions of the State Rent Acts. As such, in the case of Rajendra Behl @ Behal (supra), it has rightly been held that in view of the decision of the Hon ble Supreme Court in the case of V. Dhanpal Chettiar (supra), the decision of Division Bench of this Court in the case of Om Prakash (supra) no longer held the filed. 14. In the case of Dhanpal Chettiar (supra), the Hon ble Supreme Court has held that in order to get a decree for eviction against the tenant under any State Rent Control Act, it is not necessary to give notice under Sec. 106 of the T.P. Act. In other words, the determination of lease by notice under Sec. 106 of the T.P. Act is superflous and unnecessary. In other words, the determination of lease by notice under Sec. 106 of the T.P. Act is superflous and unnecessary. That being so, the tenancy created under the provision of the State Rent Control Act cannot be taken or construed as lease under the provision of the T.P. Act; inasmuch as if such tenancy is a lease under the provision of the T.P. Act, the lease has to be determined as per provision of Sec. 106 and/or 111 of the T.P. Act. The Hon ble Supreme Court in the case of Dhanpal Chettiar (supra) having laid down that in order to get an eviction against a tenant under any State Rent Control Act, determination of lease in accordance with the provision of T.P. Act is not necessary, lease created under the State Rent Control Act cannot be taken or construed as lease within the meaning of the lease contemplated under the provision of the T.P. Act. In my opinion, the decision of this Court in the case of Om Prakash (supra) is consistent with the decision of the Hon ble Supreme Court in the case of Dhanpal Chettiar (supra) and still holds the field, Apart from the reason stated above, there is much force in the submission of the learned Counsel for the appellant that even if, because of non-registration thereof Ext. 7 has not created a lease, same is admissible in evidence for collateral purpose to support the plaintiffs case that as per oral agreement the defendant-appellant was inducted as tenant into the suit premises for the specified period from 1.4.1976 to 28.2.1977. 15. This appeal is, therefore, without merit and is dismissed with costs throughout. 16. Gurusharan Sharma, J. I agree.