Tarang Sahu v. Surendra Sahu — 1996 DIGILAW 749 (PAT)

Judgment S.K.Chattopadhyaya, J. 1. The instant civil revision application under Sec. 14 (8) of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1982 has been filed by the defendant-petitioner impugning the judgment dated 12.3.1996 passed in Eviction Title Suit No. 27/92. 2. Before dealing with the grievances made by the petitioner it would be appropriate to portray the factual backgrounds: The opposite party-Landlord filed the said Eviction Suit on the ground that after expiry of the period of lease on 31.5.1992 the defendant-petitioner had no right to remain in occupation of the said premises. According to the plaintiff-opposite party, he is the owner and landlord of the suit premises and on the request made by the defendant-petitioner for letting out the same for the purposes of opening a Beauty Parlour, the opposite party agreed and on the basis of an oral lease for a fixed period of 11 months the suit premises was rented to the petitioner. A memorandum of oral deed in respect of the suit premises was duly executed on 5.12.1986 commencing from 1.12.1986 to 31.10.1987. It is not in dispute that the said lease was extended from time to time for a further period of 11 months on monthly rent of Rs. 59.00 . Further case of the plaintiff-opposite party was that the dealings of the defendant was unsatisfactory inasmuch as she was not regular in payment of rent and, as a matter of fact, she had not paid rent for the months of April and May, 1992. As in spite of several requests made to the defendant-petitioner to vacate the suit premises the defendant did not vacate the suit premises, the suit was filed. 3. However, in her written statement the defendant, besides taking the usual defence of non-maintainability of the suit, principles of waiver, estoppel and acquiscience and barred by law of limitation etc. put forward a positive case that there was no relationship of landlord and tenant between the parties. Defendants husband is a co-sharer of the plaintiff and a suit for partition with respect to the suit premises is pending in the civil court. The defendant-petitioner also put forward a case that the plaintiff-opposite party took advance of Rs. put forward a positive case that there was no relationship of landlord and tenant between the parties. Defendants husband is a co-sharer of the plaintiff and a suit for partition with respect to the suit premises is pending in the civil court. The defendant-petitioner also put forward a case that the plaintiff-opposite party took advance of Rs. 10, 000.00 on the understanding that the same will be adjusted in future rent and as such, there was no question of default in payment of rent for the months of April and May, 1992. However, the main defence of the defendant-petitioner was that she was a month to month tenant and not a tenant on fixed term tenancy for 11 months. No oral lease was ever executed by her for a fixed term of 11 months. On there grounds the defendant-petitioner resisted the claim of the plaintiff-opposite party. 4. The learned court below, in order to decide the suit, formulated the following issues:- (a) Is the suit as framed maintainable? (b) Has the plaintiff got valid cause of action for the suit? (c) In there relationship of landlord and tenant between the plaintiff and the defendant? (d) Is the defendant a month to month tenant, under the plaintiff or a lease for a fixed term lease? (e) To what other relief or reliefs, if any is the plaintiff entitled? The trial court after considering the oral as well as documentary evidences, has found that there was a relationship of landlord and tenant between the parties and the defendant-petitioner was not a monthly tenant rather, her tenancy was for a fixed term of 11 months. In order to arrive at a conclusion that the defendant-petitioner was not a monthly tenant, rather, a tenant for a fixed term, the court below has relied on the agreement of lease which was marked as Ext. 2. 5. Mr. N.K. Prasad, learned Sr. In order to arrive at a conclusion that the defendant-petitioner was not a monthly tenant, rather, a tenant for a fixed term, the court below has relied on the agreement of lease which was marked as Ext. 2. 5. Mr. N.K. Prasad, learned Sr. counsel appearing on behalf of the defedant-petitioner strongly placed his reliance on the decision of , a learned Single Judge of this Court in the case of Babu Jagtanand V/s. Satyanarayanji and Laxmiji through Shebait and Manager, Jantuna Das reported in 1961 BLJR 219 and in the decision of Rajendra Bahl alias Behal V/s. Deshraj Singh reported in 1989 PLJR 1163 and contended that the deed of lease being not registered as required under law, the same could not have been taken into consideration by the court below while ordering for eviction. He further submits that during the period of tenancy there was extension of the period and the deeds of lease, annexures 1 to 1/D, do not mention about any oral settlement and, as such, the opposite party-plaintiff cannot rely on those documents for contending that the tenancy was for a fixed term. Continuing the argument Mr. Prasad urged that from the perusal of the aforesaid documents as well as Ext. 2 it would be clear that the petitioner was a monthly tenant and periodically the rent was enhanced. No other point has been urged by Mr. Prasad impugning the aforesaid order. 6. Mr. A.K. Sahani, learned Counsel appearing on behalf of the landlord-opposite party, however, controverting the argument of Mr. Prasad, has submitted that the trial court after due consideration of Ext. 2 has come to a finding that oral lease was coupled with delivery for possession and as the period of lease was for 11 months, the same did not require registration as contemplated under Sec. 107 of the Transfer of Properties Act. His further contention is that even assuming that the said lease was not a registered one, the same can be looked into for colateral purposes for ascertaining the term of tenancy. 7. On going through the records it appears that the defendant-petitioner has denied to have executed any memorandum of oral lease as contained in Ext. 2 and her assertion is that she was a monthly tenant. 7. On going through the records it appears that the defendant-petitioner has denied to have executed any memorandum of oral lease as contained in Ext. 2 and her assertion is that she was a monthly tenant. She also challenged the very authenticity of the document by asserting that the said document was a forged one and, as such, her signature was required to be proved as required under the Evidence Act. Argument was advanced by the defendant-petitioner that the aforesaid lease was required to be registered and without registration Ext. 2 could not have been admitted in evidence. 8. A bare perusal of Ext. 2 shows that an oral agreement was entered into between the parties and to avoid any future complication the parties agreed to note down the terms and conditions of the oral lease in writing. The contents of Ext. 2 further clarify that the defendant-petitioner accepted the conditions of the plaintiff-opposite party accepting him as the absolute owner of the suit premises. The petitioner is containing as lessee/on the basis of the lease of 11 months since the year, 1986 and the lessee has already taken the premises on oral lease for further period of 11 months commencing from 1st of July, 1991 to 31st of May, 1992 to run office-cum-Beauty Parlour shop in two different sections. She requested the lessor to reneu the oral lease and the same has been renewed orally. Some portions of the averments of the lease may be reproduced hereinbelow: And whereas the lessor accepted the request and agreed to renew the premises in schedule on oral lease to her morefully described in the schedule hereibelow for the fixed period of eleven months commencing from 01.7.1991 to 31.05.1992. To avoid any future complications the parties hereto agreed to note down the terms and conditions of the oral lease in writing which are as follows." Condition Nos 1, 2, 3 and 9 read as follows:- 1. That the monthly rent/premium of the said premises has been fixed at Rs. 580.00 (Rupees Five Hundered Eighty only) per month which shall be payable to the Lessor by the 05th of each succeeding English Calendar month. 2. That the lessor has already given the lessee the premises morefully described in the schedule herein below on oral lease for the fixed period of eleven months since the year. 580.00 (Rupees Five Hundered Eighty only) per month which shall be payable to the Lessor by the 05th of each succeeding English Calendar month. 2. That the lessor has already given the lessee the premises morefully described in the schedule herein below on oral lease for the fixed period of eleven months since the year. 1986 and the oral lease is being renewed on every eleven months as per clause of renewal subject to the good relationship of lessee with the lessor. 3. That the period of oral lease has commenced from 01.07.1991 and shall expire by 31.05.1992. XX XX XX XX 4. That the lessee shall hand over the vacant possession of the leased premises in schedule to the lessor on the expiry of the period of lease i.e. on 01.06. 1992 if the lease is not renewed. 9. This memorandum of lease was signed by the parties on 7.7.1991 and it appears that during her examination in court, the petitioner admitted her signature on this document, Ext. 2. One of the witnesses to this document was Manoj Kumar, the husband of the petitioner. From his deposition as DW 9 the court below has come to a definite conclusion that both the husband and the wife (i. e. the petitioner) knew English language and also understand the contents of the lease. D.W. 10 also stated that the defendant-petitioner all along executed documents of tenancy for 11 months from 1986 to 1991 and accordingly paid rent in terms of the tenancy. Ext. 5 series, the rent receipts filed on behalf of the plaintiff-opposite party reveal that the tenancy of the defendant-petitioner is on the basis of memorandum of lease dated 7.7.1991. Ext. 10/A, an order of the Rent Controller in B.B.C. case No. 6.86 also fortifies the claim of the plaintiff-opposite party that the defendant-petitioner is in occupation of the suit premises on the basis of understanding between the plaintiff and the defendant. The plaintiff-opposite party categorically stated before the court below that in every 11th month the lease used to be renewed in place of old lease and after renewal of the lease as contained in Ext. 2, no further lease was renewed. In terms of the lease some percentage of rent was used to be raised at the time of fresh renewal. 2, no further lease was renewed. In terms of the lease some percentage of rent was used to be raised at the time of fresh renewal. The court below, after due consideration of the evidences on record has come to a finding that the memorandum of lease as such was not required to be registered under the Registration Act and after expiry of the period of lease, the defendant-petitioner has no right to occupy the premises under law. It also took into consideration that the defendant-petitioner failed to produce any document to suggest that the tenancy was not for a fixed term but was month to month. 10. A Full Bench of this Court in the case of Digamber Narayan Choudhury V/s. Commissioner of Tirhut Division and Ors. , on somewhat similar circumstances has, inter alia, held that it is uncontrovertable that oral agreement lease for less than a year accompanied by delivery of possession is legally valid. Their lordships noticed the observation of the Division Bench in the case of Om Prakash V/s. Additional Commissioner, Patna Division Patna reported in -- where the Division Bench has observed as follows:- A survey of the frame work would show that Bihar Act 3 of 1947 is a complete Act by itself, not dependant upon any other Act by itself, not dependant upon any other Act for the purpose of working out the provisions contained therein.... These provisions of Act 3 of 1947 appear to be untrammeled by those obtaining in the Transfer for Property Act and, accordingly, I feel no hesitation to hold that the two Acts are distinct and their provisions should be applied independently. After quoting the aforesaid observation the Full Bench has observed that, in fact, their lordships held that for the purpose of Bihar Act, III of 1947 an unregistered deed may also be considered in order to determine whether it created a month to month tenancy or for a specified period. The decision of the Division Bench in the case of Babu Jagtanand (supra) relief on by Mr. The decision of the Division Bench in the case of Babu Jagtanand (supra) relief on by Mr. Prasad, in my considered opinion is not applicable to the facts and circumstances of this case inasmuch as in that case the lease was created on the basis of a Kerayanama dated 31.8.1952 and it was not the case of the plaintiff of that case that there was an oral agreement for which lease was accompanied by delivery of possession. Their lordships on considering the facts of that case have held that unregistered Kerayanama for one year is invalid. In my view, reliance of Mr. Prasad on the decision in the case of Rajendra Bahl alias Bahel (supra) is also misconceived. The learned Single Judge, on consideration of the pleadings of the parties, has specifically held as follows:- It must, therefore, be held that the building was not let out to the appellant on the basis of any oral agreement followed by delivery of possession for a fixed period of 11 months. His lordship relying on the decision , has held that the decisions reported in -- and -- are no longer good laws. It appears that the attention of his Lordship was not drawn to the Full Bench decision in the case of Digamber Narayan Choudhury (supra). 11. However, in the instant case I need not go into the details of the aforesaid decisions of Rajendra Bahl (supra) inasmuch as the facts of the present case are entirely different. I have already discussed above that the very agreement Ext. 2 shows that the lease was an oral one coupled with delivery of possession. In my view Ext. 2 is a memorandum containing the terms oh which settlement was made. This document itself is not a transaction but is only a record of transaction. It only recites the antecedent transaction and cannot at all be considered to be a lease within the meaning of Sec. 105 of the Transfer of Properties Act. The pleadings of the parties itself show that oral lease was executed on 5.12.1986 commencing from 1.12.1986 to 31.10.1987 which was, however, extended from time to time for further period of 11 months. This fact definitely shows that by virtue of oral lease possession was given to the petitioner on 1.12.1986 i.e. before the date of execution of the lease deed on 5.12.1986. This fact definitely shows that by virtue of oral lease possession was given to the petitioner on 1.12.1986 i.e. before the date of execution of the lease deed on 5.12.1986. This shows that delivery of possession was complete before the lease was executed and, as such, it cannot at all be said that this document is really a foundation of the right of the defendant-petitioner. Annexures 1 to 1/D to this revision application further show that the defendant-petitioner renewed the aforesaid lease from time to time and expressed her desire to continue in the said premises on lease for a fixed period of 11 months. Further, the defendant-petitioner having put her signature over the said lease deed cannot be allowed to take a different stand by stating that she was a month to month tenant and her tenancy was not a fixed term tenancy. 12. Having considered the pros and cons of the facts and circumstances of the case I am of the view that no case has been made out by the petitioner for interference with the impugned order dated 12.3.1996. 13. In the result, I find to merit in this application which is, accordingly, dismissed. However, there will be no order as to costs.