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2012 DIGILAW 13 (PAT)

Md. Reyaz v. Ram Krishna Rajak

2012-01-04

V.NATH

body2012
V. NATH, J.:–Heard the learned counsel appearing on behalf of the petitioner and also the learned counsel appearing on behalf of the opposite parties. This revision application has been filed under Section 14(8) of the Bihar Buildings (Lease, Rent & Eviction)Control Act, 1982 against the order of eviction dated 15.01.2011 passed in Eviction Suit No. 04/09 by Munsif I, Munger. The parties, hereinafter, shall be referred by their position in the suit. 2. The plaintiff has filed the eviction suit no.04/09 praying for eviction of the defendant from the suit premises on the ground of personal necessity alone. The material facts of the plaintiff’s case are that the residential house described in Schedule 1 of the plaint originally belonged to Sakun Dhobi who died leaving behind two sons namely Jageshwar Rajak and Kaleshwar Rajak. The suit property remained joint among the descendants of Jageshwar Rajak and Kaleshwar Rajak who sold the said entire house to the plaintiff by registered sale deed dated 04.03.09 and delivered possession to him. The plaintiff got his name mutated in the municipality as well as in the Register II and has been paying the rent and getting rent receipts. As the sale deed could not be executed by Raj Rani Devi, who was the widow of Hari Lal Rajak, one of the sons of Jaleshwar Rajak, due to illness on the date of execution of the sale deed, she executed an Ekrarnama on 16.03.2009 in favour of the plaintiff acknowledging the sale deed and transfer of her ¼ share to the plaintiff in the suit house and accepting that she has also received her share of consideration money from the plaintiff and his title over the entire sold property. It is the further case of the plaintiff that the defendant had been inducted as tenant by Raj Rani Devi in her share of the suit house on 18.08.08 on monthly rental of Rs.15,000/-and after the execution of the Ekrarnama, she asked the defendant to pay the rent of the tenanted premises to the plaintiff as he had purchased the entire Schedule 1 house. Later on the plaintiff requested the defendant to vacate the tenanted premises as the plaintiff required the same for starting his own business and for accommodation of his big family but the defendant, in spite of the request of the plaintiff, did not pay the arrears of rent since 04.03.2009 nor vacated the tenanted premises. Consequently, the plaintiff filed this suit for eviction of the defendant on the ground of personal necessity alone. 3. The defendant resisted the claim of the plaintiff mainly on the ground that there was no relationship of landlord and tenant in between the plaintiff and the defendant. It has been asserted that the defendant had no knowledge of the sale deed dated 04.03.2009 of the plaintiff and further that the said sale deed had not been executed by his Landlord Raj Rani Devi. The agreement (Ekrarnama) allegedly executed by Raj Rani Devi in favour of the plaintiff has been assailed as not valid document conferring title to the plaintiff for want of registration. It is the specific case of the defendant that the real owner Raj Rani Devi had inducted him as tenant in the suit premises on the basis of Kirayanama for a period of 5 years from 12.07.2008 to 15.08.2013 on the monthly rental of Rs. 1500/- per month and he has been paying rent to his landlord Raj Rani Devi regularly and he cannot be evicted from the tenanted premises before the expiry of the said period of 5 years. The personal necessity of the plaintiff has also been denied on the ground that the son of the plaintiff was already under employment and the tenanted premises was not suitable for starting business for hardware Shop as proposed by the plaintiff. 4. The learned court below framed the issues including the issue relating to existence of relationship of landlord and tenant between the plaintiff and the defendant; existence of bona fide personal necessity of the plaintiff and also with regard to partial eviction. 4. The learned court below framed the issues including the issue relating to existence of relationship of landlord and tenant between the plaintiff and the defendant; existence of bona fide personal necessity of the plaintiff and also with regard to partial eviction. Both the parties led their oral and documentary evidence and after hearing the parties and considering the evidence and their rival submissions, the learned court below has come to the conclusion that the plaintiff has validly acquired the title over the house described in Schedule 1 of the plaint from its owners including the landlord of the defendant who had acknowledged the title of the plaintiff, and thus there is existence of relationship of landlord and tenant in between the plaintiff and the defendant. On the basis of the evidence on record the learned court below has further held that the plaintiff has bona fide personal necessity of the tenanted premises and partial eviction will not satisfy the need of the plaintiff. Consequently, the suit has been decreed and order for eviction has been passed against the defendant by the impugned order. 5. Mr.S.S.Dwivedi, the learned senior counsel appearing on behalf of the petitioner has firstly pointed out that the defendant had been inducted as tenant in the suit premises on the basis of the Kiraynama dated 12.07.08 executed by the admitted owner Raj Rani Devi wherein it has been clearly stipulated that the tenancy would be for a period of 5 years from 15.08.08 to 15.08.2013 and the receipt of advance of Rs. 30,000/- by the defendant had also been acknowledged by Ext.(c) which is a memorandum of receiving money, in the writing of the son of Raj Rani Dev. And on this basis, learned senior counsel has urged that the defendant cannot be evicted before the expiry of the agreed period of tenancy and without getting back his advance money which the plaintiff has malafidely not offered to return by making necessary averment in the plaint. It has been next submitted that the plaintiff has not acquired valid title over the tenanted premises simply on the basis of the Ekrarnama executed by the owner Raj Rani Devi and as such no relationship of landlord and tenant has been created between the plaintiff and the defendant. It has been next submitted that the plaintiff has not acquired valid title over the tenanted premises simply on the basis of the Ekrarnama executed by the owner Raj Rani Devi and as such no relationship of landlord and tenant has been created between the plaintiff and the defendant. The learned senior counsel thus has submitted that the learned court below has failed to take into consideration these important aspects going to the root of the matter and therefore the impugned order for eviction of the defendant is not sustainable in law. 6. Per contra, the learned counsel appearing on behalf of the opposite parties has submitted that the impugned order of eviction has been passed after fully considering the entire aspect of the matter and there is no illegality in the impugned order. It has been submitted that the house mentioned in Schedule1 of the plaint was the joint family property of the descendants of Sakun Dhobi and all the co-sharers therein have jointly sold the same to the plaintiff by registered sale deed and one co-sharer who was the landlord of the defendant could not join the execution of the sale deed but has later on executed an Ekrarnama acknowledging the validity of the sale in favour of the plaintiff and recognizing the valid title of the plaintiff over the entire house. It is also the contention on behalf of the opposite parties that the defendant has no right to challenge the validity of the sale deed or transfer of title by the co-owners of the house in Schedule 1 of the plaint to the plaintiff and it is the co-owners alone including the landlord of the defendant who could have challenged the title of the plaintiff or the validity of the sale deed. It has been argued that the Kirayanama for 5 years was required to be registered and as such it is inadmissible in evidence and cannot be relied upon by the defendant to resist the claim of eviction. It has been further submitted that the finding of bona fide personal requirement of the plaintiff for the tenanted premises has been recorded by the court below on the basis of evidence and the mandatory finding on the issue of partial eviction has also been recorded. It has been further submitted that the finding of bona fide personal requirement of the plaintiff for the tenanted premises has been recorded by the court below on the basis of evidence and the mandatory finding on the issue of partial eviction has also been recorded. The learned counsel has also submitted that in the revisional jurisdiction under Section 14(8) of the B.B.C. Act the reappraisal of the evidence in full-fledged manner is not possible and has prayed to uphold the findings of the court below. 7. After hearing the parties and perusing the impugned order it is pellucid that the defendant is a tenant of the tenanted premises and he has claimed his tenancy on the basis of the Kiraynama dated 12.07.2008. This Kiraynama has been marked as Ext.A in the suit with objection. On the basis of the terms of this Kiraynama, stipulating the period of tenancy to be 5 years from 15.08.2008 to 15.08.2013 and payment of advance money of Rs. 30,000/-, the defendant has claimed that he cannot be evicted from the tenanted premises before the expiry of 5 years and the refund of Rs. 30,000/- which, according to him, the plaintiff has never offered to pay. This Kiraynama (Ext.A) is admittedly an unregistered document but creates the tenancy for 5 years. In view of Section 107 of Transfer of Property Act, this document being a lease for a term exceeding one year, was required to be registered. Section 107 of the Transfer of Property Act may be taken notice of in this regard which runs as under:- “107. Lease how made.–A lease of immovable property from year to year, or for any term exceeding one year or reserving a 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. x x x x x However, in order to appreciate the effect of non-registration of this document the provision contained in Section 49 of the Registration Act may be looked into which reads as follows:- “49. All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. x x x x x However, in order to appreciate the effect of non-registration of this document the provision contained in Section 49 of the Registration Act may be looked into which reads as follows:- “49. Effect of non-registration of documents required to be registered.–No document required by Section 17 or by any provision of the Transfer of Property Act, 1882(4 of 1882) to be registered shall- (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered: Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief act, 1877(1 of 1877) or as evidence of any collateral transaction not required to be effected by registered instrument.” 8. On the basis of the proviso to Section 49 of the Registration Act as quoted above, it has been urged on behalf of the defendant that this document (Ext.A) can be used for collateral purpose to establish that the defendant’s possession over the tenanted premises is as a tenant for a period of 5 years and the payment of advance amount of Rs. 30,000/- has been made to the landlord. This submission is clearly misconceived. The term “collateral purpose” occurring in Section 49 of the Registration Act cannot be extended to include the main terms of the contract (in this case Kiraynama Ext.A) which has been made inadmissible in evidence. The fixation of the period of tenancy for 5 years and the payment of advance of Rs. 30,000/- are not collateral to the tenancy contract rather they are the main terms on which basis the tenancy has been created. They can be described as necessary constituents of the tenancy in question. This aspect has been illumined by the apex court in K.B. Saha and Sons (P) Ltd. Vs. Development Consultant Ltd., ( 2008 (8)SCC 564 ) wherein their Lordships after referring to a judgment of Calcutta High Court has observed:- “In Haran Chandra Chakravarti Vs. They can be described as necessary constituents of the tenancy in question. This aspect has been illumined by the apex court in K.B. Saha and Sons (P) Ltd. Vs. Development Consultant Ltd., ( 2008 (8)SCC 564 ) wherein their Lordships after referring to a judgment of Calcutta High Court has observed:- “In Haran Chandra Chakravarti Vs. Kaliprasanna Sarkar It was held that the terms of a compulsorily registrable instrument are nothing less than a transaction affecting the property comprised in it. It was also held that to use such an instrument for the purpose of proving such a term would not be using it for a collateral purpose and that the question as to who is the tenant and on what terms he has been created a tenant are not collateral facts but they are important terms of the contract of tenancy, which cannot be proved by admission of an unregistered lease deed into evidence.” Their Lordships thereafter considered other relevant decisions on this issue and have laid down as follows:- 1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act. 2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act. 3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration. 4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards. 5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause not be using it as a collateral purpose. 9. In view of the aforesaid principles of interpretation of the term “collateral purpose” the terms of the Kiraynama (Ext.A) fixing the period of tenancy and payment of advance money cannot be taken to be collateral purpose and the Kiraynama cannot be taken by way of evidence to prove those terms. Consequently it is held that the defendant cannot be allowed to set up his defence against eviction relying upon the aforesaid terms of Kiraynama (Ext.A). 10. Consequently it is held that the defendant cannot be allowed to set up his defence against eviction relying upon the aforesaid terms of Kiraynama (Ext.A). 10. So far as the submission with regard to acquisition of valid title over the premises mentioned in Schedule 1 of the plaint by the plaintiff is concerned, there is no dispute that a registered sale deed has been executed in favour of the plaintiff with regard to the same by all the co-sharers except one co-sharer namely Raj Rani Devi who is the landlord of the defendant. But she later on had executed an Ekrarnama in favour of the plaintiff accepting the title of the plaintiff over the premises under Schedule 1 of the plaint. This Ekrarnama which has been brought on record as Ext.4 is clearly in the nature of ratification of the earlier sale made in favour of the plaintiff by her co-sharers. The evidence has come on record to show that the plaintiff has got his name mutated over his purchased house and has been paying rent and getting rent receipts. It has been rightly submitted on behalf of the opposite parties that the defendant has no right to challenge the validity of the acquisition of title by the plaintiff which could have been done only by his Landlord Raj Rani Devi or any of her co-sharers. The learned court below has considered the oral evidence also in this regard and has come to the finding that after purchasing the house mentioned in Schedule 1 of the plaint the plaintiff has acquired the status of landlord of the defendant with regard to the tenanted premises. There is no infirmity in this finding of the learned court below. 11. The learned court below has further elaborately considered the issue of bona fide personal necessity of the plaintiff for the tenanted premises and on the basis of evidence on record has decided the said issue in favour of the plaintiff. It is not disputed that the tenanted premises is measuring 15 feet long east to west and 7 feet wide north to south and is a small shop. It is not disputed that the tenanted premises is measuring 15 feet long east to west and 7 feet wide north to south and is a small shop. The learned court below has also considered the aspect of partial eviction as required under the proviso to Section 11 (c) of the B.B.C.Act and has come to the finding that the partial eviction of the defendant from tenanted premises will not satisfy the need of the plaintiff. During the course of the argument, nothing could be established on behalf of the petitioner to show that the findings on the issue of personal necessity as well as partial eviction are in any manner perverse. Thus there is no illegality in these findings also. 12. For the foregoing reasons and discussions, this revision application is dismissed. However, there will be no order as to costs.