State of U P v. Sudha Devi Bhargava — 1996 DIGILAW 309 (ALL)

Judgment : S. K. Phaujdar J. 1. The present appeal is directed against the judgment and decree dated 10-10-1989 passed by the 3rd Additional Civil Judge, Mathura, in Civil Appeal No. 83 of 1988. The first appellate court had reversed a decree of dismissal dated 24-3-1988 passed by the IVth Additional Civil Judge, Mathura in O. S. No. 408 of 1986 and decreed the suit of the plaintiff (appellant before the first appellate court) directing the defendant (police department) to deliver vacant possession of the suit property to the plaintiff. By the appellate court decree there was a direction for recovery of damages also. 2. SMT. Sudha Devi Bhargawa, the present respondent, was the plaintiff before the court of first instance. Her mother-in-law was the owner of the suit property. As stated in the plaint, in 1972 only one phatak (gate) of the suit property was let out to the police department on a monthly rent of Rs. 60/- and there was a stipulation that the plaintiff would have a right to ingress and egress to and from the property in question through this gate (phatak ). The property consisted of a godown, certain rooms and a court-yard the plaintiff got the property on the strength of a will executed by her mother-in-law and, it was alleged, that in 1985 the police personnel had occupied the inner portions of the property (which was not let out to them) and had caused substantial damage to the property to the tune of Rs. 5,000/ -. On a notice to vacate the property, the defendants failed to vacate. Section 80, CPC notice also proved futile and the suit was filed for eviction and possession and for damages. The defendants (the present appellant) came out with a case in their written statement that the whole of the suit property including the gate in question was let out to the police department in the year 1975 and eviction was not permissible except under the provisions of the U. P. Act No. 13 of 1972. The trial court held that the tenancy was for the whole of the premises and there was no damage caused to the property by the defendants and, accordingly, the trial court dismissed the suit. The trial court held that the tenancy was for the whole of the premises and there was no damage caused to the property by the defendants and, accordingly, the trial court dismissed the suit. The first appellate court, on an appeal by the plaintiff, engaged itself to see when the suit property was given to the defendants for use and occupation in 1972 or 1975. The first appellate court also lays stress on the question of the status of the defendants as tenant, trespasser or a licensee. The first appellate court was of the view that the entire property was given by the plaintiff to the defendants in 1972 and they were in possession over the entire property since then. It was, however, of the view that there could not have been any lease as, according to it, a lease could only be created by way of a registered document. The first appellate court was also of the view that Article 299 of the Constitution of India required that all contracts made in exercise of executive powers of a State shall be expressed to be made by the Governor of the State. He came to the conclusion that the possession of the defendant on the suit property was that of a licence and the licence could be revoked at any time even by filing of the suit and, accordingly, the appeal was allowed and the suit of the plaintiff was decreed. It is necessary to mention here that the suit was filed not for the whole of the property but for the inner part of the property only, barring the gate (phatak) which was admittedly under a lease. The appeal was admitted on certain specific questions of law as framed in the grounds of appeal. Those were : (1) If the appellate court erred in law in decreeing an eviction in spite of a concurrent finding that there was no encroachment by the appellant over the property in suit property ; (2) Whether the provisions of the U. P. Act No. 13 of 1972 were applicable to the said premises ; (3) Whether the first appellate court made out a third case deviating from the cases of the parties, and (4) Whether the plaintiff-respondent was estopped in law to challenge the statuts of a tenant that was implicitly accepted by the plaintiff so far the suit-property is concerned. 3. 3. ARGUMENTS were, however, advanced on all the above points together and the learned counsel laid stress on the true interpretation of Article 299 of the Constitution of India, as also of Section 107 of the Transfer of Property Act (in short, TP Act) They had relied on case, laws which shall be referred in the next chapter of this judgment. But as the court of second appeal, this Court must guard itself against any possible transgression to the zone of disputed facts. Certain facts have been established by consistent findings of the courts below and the same may not, therefore, be open to criticism except on the application of law on those proven facts. The plaintiff had sued the defendant for the suit property on the ground that only the Phatak was let out to the defendant and the police officials encroached upon the inner portion of the premises also and eviction was sought from the inner portion only. It was the defendant's case that the police department was the tenant for the whole of the premises including the gate and the inner portion. The trial court found that the tenancy was for the whole of the premises and the suit was dismissed as there was no termination of the tenancy as requried under the law. The first appellate court found that the inner portion of the premises (i.e. the suit property) was in occupation of the defendants since 1972 and the whole of the premises was known as Phatak of Bhargawas. The courts below also found that rent was paid for the Phatak of the Bhargawas. The first appellate court, however, came out with a case pleaded by either party. It held that for the inner portion there was no tenancy created as there was no registered agreement, and, accordingly, he held the possession of the defendant as one of a licensee and permitted eviction of the defendants in that capacity. The trial court as also the first appellate court were concurrent in their findings that there was no encroachment by the appellant in the suit property. Discussions are there by the courts below in their judgments regarding the mode of realisation of rent and there are findings of fact that the son of the plaintiff used to go to the premises to collect the rent and the rent receipts described the tenanted premises as Phatak. Discussions are there by the courts below in their judgments regarding the mode of realisation of rent and there are findings of fact that the son of the plaintiff used to go to the premises to collect the rent and the rent receipts described the tenanted premises as Phatak. Thus, the four points of law as framed in the memorandum of the present second appeal and as mentioned in the page 2 of this judgment converged to only two questions: (1) Whether the first appellate court had rightly interpreted Article 299 of the Constitution and Section 107 of the TP Act? and (2) Whether the defendant was a tenant in the suit premises? 4. LEARNED counsel for the appellant relied on a decision of the Allahabad High Court, as reported in 1981 ALJ 248. There was an oral lease in this case for a building let out to the government. It was held that the Article 299 of the Constitution was not applicable. The lease accordingly would not be invalid for non- compliance of Article 299. Reliance was also placed on a decision of the Madras High Court as reported in AIR 1951 Mad 855 . The Court considered a case of lease of a building for residence of police officials and it was held that the State Government was not a tenant as the lease was entered into by the Superintendent to Police who was not an officer empowered to execute a contract on behalf of the Governor. Reliance was also placed on a third case, as reported in 1989 ALJ 397. A building was let out to the Government and the Government was discharging its duties and obligations as tenant and paying rent, it was held that the Government was estopped from raising a plea at the stage of revision that the tenancy was not created by executing an agreement as per provisions of Article 299. The learned counsel while relying on this case-law submitted that this law of estoppel would be applicable in the present case for the plaintiff who was aware of the occupation of the inner portion of the premises by the defendant and who had realised rent from 1972 to 1986 without any protest. Learned counsel for the respondent placed reliance on a decision of the Supreme Court in the case of Mulam Chand, as reported in 1968 ALJ 745. Learned counsel for the respondent placed reliance on a decision of the Supreme Court in the case of Mulam Chand, as reported in 1968 ALJ 745. It was held herein that the provisions of Article 299 (1) of the Constitution of India are mandatory in nature and the contravention of this nullifies the contract and makes it void. In the case before the Supreme Court it was a contract in favour of the appellant to remove forest produce like lac, tendu leaves etc. It was held herein, that there was no question of estoppel or ratification in cases of contravention of Article 299 as this provision was enacted not for the sake of mere form but for safeguarding the Government against unauthorised contracts. Under Article 299, all contracts made in the exercise of executive power of the Union or of a State shall be expressed to be made by the President or by the Governor, as the case may be, and are to be executed on behalf of the President or the Governor by such person in such manner as the President or the Governor may direct or authorise. Reliance was further placed on a decision of the Allahabad High Court, as reported in AIR 1982 All 260 . Here was a case of delivery of possession of a house by a lease executed in favour of the government. The lease was for five years but the lease-deed was not registered. The Court found that a lessor and lessee relationship did not come into existence as the lease-deed was not registered and the possession of the Government was that of a licensee and the Government was liable to restore possession to the owner. In the plaint itself the plaintiff had alleged in that case that there was no valid lease between the Government and the plaintiff and the possession of the Government was mere permissive and a question arose whether the defendant was a tenant in the suit property. The Court held that the defendant was a licencee and was liable for eviction. 5. SECTION 107 of the T. P. Act indicates how leases are to be made. A lease of immovable property from year to year or for any term exceeding one year, or reserving an yearly rent, can be made only by a registered instrument. The Court held that the defendant was a licencee and was liable for eviction. 5. SECTION 107 of the T. P. Act indicates how leases are to be made. A lease of immovable property from year to year or for any term exceeding one year, or reserving an yearly rent, can be made only by a registered instrument. All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. In the case under question it was a lease on month to month basis either for the Phatak alone or for the whole of the premises. It is nobody's case that the lease was for any term exceeding one year or there was any reservation of yearly rent. There was, therefore, no necessity of a registered instrument for creation of the lease and an oral agreement accompanied by delivery of possession was sufficient to create the lease. Article 299 of the Constitution of India envisages such contracts which are made in the exercise of executive power of the Union or the State, and if the contract falls in this category then and then only the other requirements of this article would come into play. Moreover, Article 299 speaks of execution of the contract and it suggests that for invoking Article 299 there must be a deed of formal written contract and oral contracts are kept outside the ambit of this Article. For any oral agreement gone into by an officer for lease of a building, the conditions of SECTION 107 of the T. P. Act are fulfilled if the tenancy is not for one year or for more than one year. An oral contract of this nature would not be binding upon the Government. The nature of the suit indicates that eviction of the police personnel was sought for and the State was only a formal party. The non-existence of a written contract in contravention to the provisions of Article 299 of the Constitution, therefore, would not affect the case so far it relates to the relationship of the police department and the plaintiff, be as a tenant or as a licen see. In this view of the matter the decision in Mulam Chand's case would not be applicable to the present set of facts. In this view of the matter the decision in Mulam Chand's case would not be applicable to the present set of facts. The decision of the Allahabad High Court as reported in AIR 1982 All 260 is also not applicable inasmuch as there was a lease for five years but the same was not registered as required under SECTION 107 of the TP Act. Under those circumstances, the court held that the status of the Government on the premises was not as a tenant but as a licensee and the Government was held liable to restore possession to the owner. In the instant case, the tenancy was on a month to month basis on payment of monthly rent and there was no necessity of a registered agreement for creation of the lease and the first appellate court was definitely in error of law in demanding that the lease should have been a registered one. 6. THE courts below found on facts that the police department was in occupation of the whole of the premises including the Phatak since 1972. THE trial court held that there was a lease for the whole of the premises while the first appellate court held that it was not a lease, atleast for the inner portion of the premises, and its approach has already been assailed as wrong one under a true interpretation of Article 299 of the Constitution and Section 107 of the T P. Act. It was not open for the first appellate court to make out a third case which neither of the parties had pleaded. THE plaintiff had pleaded forcible encroachment on the portion which was discarded by both the courts below. THE defendant had raised a plea of tenancy for the whole of the premises. There was, therefore, no scope for reaching a conclusion making out a third case when the plaintiff had failed to prove encroachment by the defendants on to the inner portion of the premises. THE defendant had raised a plea of tenancy for the whole of the premises. There was, therefore, no scope for reaching a conclusion making out a third case when the plaintiff had failed to prove encroachment by the defendants on to the inner portion of the premises. When there was a finding of fact by the two courts below that the plaintiff was in knowledge about the possession of the defendants oil the inner portion of the suit property since 1972 and a further finding of fact that the whole premises was known as the PHATAK OF BHAR-GAWAS, the only conclusion which may have been drawn under the law was that there was a tenancy created in favour of the defendant for the whole of the premises. THE decision of the first appellate court was, therefore, wrong while the decision of the trial court on this issue was the only legal one to be arrived at. Once it is held that the defendant-appellant was a tenant for the whole of the premises known as PHATAK OF BHARGAWAS, the provisions of the U. P. Act No. 13 of 1972 would be attracted and no suit for eviction of the tenant would lie unless one or more of the grounds, as mentioned in Section 20 (2) of the U. P. Act No. 13 of 1972, is/are made out. 7. THE appeal, accordingly, stands allowed. THE judgment and decree of the first appellate court is set aside and the judgment and decree of the trial court dismissing the suit of the plaintiff is confirmed. There will be no order as to costs. Appeal allowed.