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Punjab High Court · body

2009 DIGILAW 325 (PNJ)

Subhash Dahiya v. Raghvir Singh

2009-02-12

K.KANNAN

body2009
Judgment K.Kannan, J. 1. The landlords application for eviction was on the ground that the tenant had failed to pay rent arrears from 1.3.2003 to 30.6.2003 for a period of four months. The justification for the tenant on non-payment was that he was not liable to pay any rent. The Rent Controller and the appellate authority relied on the rent deed executed by the tenant in favour of the landlord and found the non-payment of rent to be unjustified. 2. The landlords counsel appearing for the revision petitioner has the following submissions to make : (i) the rental agreement was purported to be for a term of three years and being unregistered, it ought not to have been admitted into evidence; (ii) the rent deed contained some additions made subsequent to execution and the document could not be relied on; (iii) the property in the possession of the tenant belonged to the Municipal Committee to which he was paying rent and also the electricity charges. The Municipal Committee itself had filed suit before Civil Court against both the landlord and the tenant in respect of the same property and hence the plea by the tenant that the petitioner in the Rent Control proceeding was not his landlord ought to have been accepted; 3. Before the Rent Controller the landlord produced the house tax receipts and marked as Ex.P-1 to P-4, electricity bills P-5 to P-7 and the rental agreement. The tenant in turn filed documents purporting to be rent receipts for the very same property issued by the Municipal Committee as well as the electricity bills paid by the tenant in relation to the electricity connection at the property. The Rent Controller and the appellate authority considered the issue from the perspective that the plea by the tenant that rent deed had been taken by him by fraud was not acceptable and there was an evidence of witness PW-2 who had spoken about the signature of the tenant in the document. The Courts below further reasoned that the tenant himself had conceded the signature in the document and if the tenant had executed the rent deed in relation to the same property, it was irrelevant that the Municipal Committee was also exercising its right of ownership or had taken any action before the civil Court. 4. The Courts below further reasoned that the tenant himself had conceded the signature in the document and if the tenant had executed the rent deed in relation to the same property, it was irrelevant that the Municipal Committee was also exercising its right of ownership or had taken any action before the civil Court. 4. The learned counsel for the revision petitioner took me through all the documents in an effort to convince that the documents filed by the landlord did not refer to the demised premises at all. The property in dispute was admittedly a shop while the tax receipts P-1 to P-4 were assessed to a residential house, so stated in the receipts themselves. The electricity bills related to the service at another premises adjoining the demised premises of which the landlord was admittedly the owner and in respect of which premises he had already given an affidavit Exhibited as P-15 that the electricity meter No. 82/675 belonged only to the landlord and that he would have no objection to the Electricity Board changing the service connection in the name of the landlord. The affidavit refers to electricity meter No. 82/675 and according to the counsel for the revision petitioner that acting on the affidavit, the Electricity Board changed the service connection and levied electricity charges on the landlord, Exhibited as P-5 to P-7 that made reference to a changed account No. 82/0767. 5. The learned counsel for the revision petitioner further argues that the rent deed was not executed for the petition mentioned premises but refers to the adjoining premises where the tenant has been using as a store for his Halwai shop. 6. The learned senior counsel for the respondent for the landlord points out that apart from a bald plea that the rent deed (P-10) was obtained from him by fraud. The tenant did not contend that the rent deed pertained to some other premises of which the landlord was the owner. According to him, the explanation trotted out by the tenant that Ex.P-10 did not refer to the property had no basis in the pleadings. There was no form of express contention that the rent agreement related to some other property. 7. According to him, the explanation trotted out by the tenant that Ex.P-10 did not refer to the property had no basis in the pleadings. There was no form of express contention that the rent agreement related to some other property. 7. The first issue is whether at all, the rent deed could be relied upon if the document purported to be for a term exceeding one year, Section 17 of the Registration Act read with Section 107 of the Transfer of Property Act, make it clear that such document is required to be registered and Section 49 of the Registration Act, bar the reception of an instrument that is required to be registered under Section 17(1)(d) to be received in evidence for proof of the terms of the document, subject to the three known exceptions set out in Section 49 itself. The trial Court and the appellate Court did not consider the issue regarding the effect of non-registration and have taken the document as proof of lease in respect of the property. If a particular persons possession under the instrument is an admitted fact, the proof of character of possession may be a collateral purpose to which the unregistered instrument could supply the need for proof. On the other hand, if the possession to the property itself is not under the instrument but could be proved to be independent of the same, then the unregistered document cannot be relied upon to prove any of the recitals/terms of the documents. In this case PW-l as the landlord has admitted that the tenant has admitted in the following words : "The defendant has been working in a Halwai shop at Kharkhoda for the last about 10-11 years. He has been working in the shop in dispute since 1998." 8. If the landlord had conceded that the tenant had been in possession of property ever since 1998, then he also admits that his possession is de hors rental agreement. No term in the document can therefore, be used by the landlord to say that the tenant entered into the property under the document and, therefore, his possession could be termed to be that of a tenant in respect of such property. 9. No term in the document can therefore, be used by the landlord to say that the tenant entered into the property under the document and, therefore, his possession could be termed to be that of a tenant in respect of such property. 9. Even that apart, if the tax receipts did not refer to the petition mentioned property and the electricity bills also do not refer to the petition mentioned property, the only in-ference would be, the nature of the pleadings of the defendant, according to the learned senior counsel for the respondent, constitutes an admission of his tenancy in respect of the petition mentioned property. If a particular document is unregistered, then the terms of an unregistered document, if reproduced in the petition, is not found expressly enied I cannot constitute an admission. The tenant has stated that there was no form of landlord and tenant relationship in respect of the property. Although the tenant has not specifically contended that the rent agreement was with reference to the some other property, the rent cannot also at the same time avail to the landlord to prove that it was in respect of the petition mentioned premises to establish a tenancy in his favour. 10. The Rent Controller and the appellate authority have taken up the issue relating to the denial of the title by the tenant only from the perspective that, if the respondent had executed a rent agreement it operated as an estoppel and it was no longer possible for the tenant to contend that the property belonged to the Municipal Committee and there was a civil proceeding initiated at the instance of the Municipal Committee against both the landlord and the tenant. The aspect that the Courts below have failed to note is that, had the document been unregistered and the possession of the tenant is proved to exist even without reference to the said document, the principle of estoppel would not apply to him. Section 116 of the Evidence Act operates only on an existing relationship of landlord and tenant which is found on a contract which is valid. The contract of lease itself could be either express or implied. If the rent deed itself was invalid, in a given case if the tenant had paid rent, the payment of rent itself would create a lease by implication. The contract of lease itself could be either express or implied. If the rent deed itself was invalid, in a given case if the tenant had paid rent, the payment of rent itself would create a lease by implication. Admittedly, the tenant did not ever pay rent to the landlord in respect of the premises even for one month after the execution of the unregistered rent deed. Therefore, it cannot also be stated that there is any tenancy by implication. 11. Commenting on the defence of the tenant that the Municipal Committee was the owner of the land over which a shop had been put up, the Rent Controller and the Appellate authority had reasoned that the reference in the receipts is for shop and not for land and if according to the tenant, the Municipal Committee was merely the owner of the land and it was inconceivable that the receipts could have been made with reference to the shops. The argument must be understood in the context of receipts for a particular type of user of the premises and also the fact that there was proof that the Municipal Committee had taken action before a civil Court staking its claim to the property. 12. The learned counsel for the respondent was not prepared to join issues that the Municipality could not have validly rented out the property to the tenant but stated that the lines of reasoning of the Rent Controller and the appellate authority that it was a matter between the landlord and the Municipal Committee and not for the tenant to plead that the Municipal Committee was the owner. This argument, in my view, is an argument in evasion. The assertion of right by the Municipal Committee assumes significance only because the crucial issues as to the proof of existence of landlord and tenant relationship could not be founded either in the unregistered rent deed or by any conduct of a tenant which would prove that he is a tenant of the landlord in respect of the premises. 13. The decisions of the Rent Controller and the appellate authority issuing orders of ejectment, finding the relationships to exist on the basis of the unregistered instrument is against law. The orders are set aside and the civil evision petition is allowed. No costs.