JUDGMENT Hon’ble Sudhir Agarwal, J.—Heard Sri R.C.Singh, learned counsel for the appellant and Sri M.A.Qadeer, Senior Advocate assisted by Sri V.K.Nagaich, Advocate for respondent No. 2/1/4. 2. This Court formulated following substantial questions of law, which have to be answered in this appeal: i. Whether the lower appellate Court was justified in allowing the Civil Appeal No. 81/79 filed by defendant Nos. 2 and 3 without upsetting the findings recorded by the trial Court that the alleged lease-deed in their favour was wholly illegal and contrary to law? ii. Whether a lease-deed executed on behalf of Municipal Board in accordance with the provisions of U.P. Municipalities Act and the notifications issued thereunder is required to be registered? iii. Whether the provisions of registration requiring registration of the lease-deed would override the provisions of U.P. Municipalities Act and the notifications issued thereunder which had made a special provision for grant of lease of properties vested with the Municipal Board? 3. The necessary facts, in brief, for better understanding of dispute so as to effectively answer aforesaid questions, to be looked into, are stated as under: 4. Smt. Ram Kumari Devi, Dr.Lokesh Chandra and Smt. Maitri Devi instituted original suit No. 134 of 1974, initially against Municipal Board Bisalpur, (hereinafter referred to as “Board”), seeking mandatory injunction that Board should execute within such time, as fixed by Court, a proper lease-deed at the cost of plaintiffs for further period of 30 years, on the terms and conditions, laid down in lease-deed dated 20.10.1948. Subsequently, by way of amendment, it also impleaded Sri Ram Bhajan Lal and Harnandan Prasad as defendants 2 and 3 and a prayer was also added that in case defendants 2 and 3 or any of the defendants be found in possession of suit property, the same be delivered to be plaintiffs after dispossession of defendants. 5. The suit was contested by Board. In its written statement dated 6.11.1975 it pleaded that terms of lease granted to the plaintiffs expired long back and plaintiffs are occupying the land without title. The plaintiffs never gave any application for renewal as alleged in September, 1973 and hence there was no occasion to consider the question of renewal of lease by the Board. In its written statement dated 6.11.1975 it pleaded that terms of lease granted to the plaintiffs expired long back and plaintiffs are occupying the land without title. The plaintiffs never gave any application for renewal as alleged in September, 1973 and hence there was no occasion to consider the question of renewal of lease by the Board. As per the lease-deed, the plaintiffs were required to built a building for their use which they failed and hence they lost their right of renewal and that the Board has approved lease of the land in favour of some other person hence no question of renewal arises. 6. The defendants 2 and 3 filed an application dated 4.5.1977 seeking their impleadment alleging that after expiry of lease granted to the plaintiffs on the property in dispute, Board has given property on lease to them (defendant 2 and 3) and therefore, they should also be made party. This was allowed and they were impleaded as defendants 2 and 3. 7. The plaintiffs also got para 6A added in the plaint challenging grant of lease to defendants 2 and 3 and pleaded that lease is void under the provisions of Municipality Act and also hit by Section 52 of Transfer of Property Act, 1882 (hereinafter referred to as “Act, 1882”) and contractual obligation between defendant 1 would not come in their (plaintiffs’) way otherwise. 8. The written statement dated 17.12.1977 was filed by defendants 2 and 3 wherein they alleged that plaintiffs had no right to seek renewal of lease and since the Board had executed a lease-deed in their favour, hence plaintiffs have no right now to claim renewal. It was also stated that they (defendants 2 & 3) have got possession of land in dispute and now they cannot be dispossessed. 9. Thereafter an additional written statement, dated 11.5.1978, was filed by defendant 1, wherein it was alleged that neither defendants 2 and 3 are in possession of the land in dispute, nor any lease-deed has been executed, according to law, in their favour, and they also thus cannot claim any right or interest in the disputed land. 10. 9. Thereafter an additional written statement, dated 11.5.1978, was filed by defendant 1, wherein it was alleged that neither defendants 2 and 3 are in possession of the land in dispute, nor any lease-deed has been executed, according to law, in their favour, and they also thus cannot claim any right or interest in the disputed land. 10. It is in these circumstances, Trial Court formulated following eight issues: ^^1- D;k oknhx.k dks dfFkr iV~Vk futkbZ dk uohuhdj.k djkus dk gd gkfly gSA ;fn gka rks fdu 'krksZa ijA 2- D;k iV~Vk 20-10-48 ekSlwek jk/kkÑ".k voS/kkfud FkkA ;fn gka rks mldk izHkkoA 3- D;k izfroknh ua0 1 dks dksbZ gd izfroknhx.k ua0 2 o 3 ds gd esa iV~Vk execute djus dk gkfly FkkA ;fn gka rks mldk izHkkoA 4- D;k oknhx.k dks vkjkth futkbZ ij n[ky izkIr djus dk gd gkfly gS\ 5- D;k izfroknh ua0 1 dks /kkjk 326 M.B. Act ds vUrxZr dksbZ oS/kkfud uksfVl oknhx.k us ugha fn;kA ;fn gka rks mldk izHkkoA 6- D;k okn dk ewY;kadu de dk;e fd;k x;k gS vkSj U;k; 'kqYd de vnk fd;k x;k gSA 7 D;k iV~Vk 4-7-75 ekSlwek izfroknhx.k ua0 2 o 3 oS/kkfud gSA ;fn gka rks mldk izHkkoA 8 D;k oknhx.k dksbZ vuqrks"k ikus dk vfèkdkjh gS\^^ “1. Whether the plaintiffs have a right to get the said lease in dispute renewed. If so, under what terms? 2. Whether the aforesaid lease dated 20.10.1948 was illegal. If so, its effect? 3. Whether defendant No. 1 has any right to execute lease in favour of defendant Nos. 2 and 3. If so, its effect? 4. Whether the plaintiffs have a right to gain possession over the plot in dispute. 5. Whether the plaintiffs did not give any legal notice as required under Section 326 M.B.Act to defendant No. 1. If so, its effect? 6. Whether the valuation of the suit has been under assessed and Court fee has been under-paid? 7. Whether the lease dated 4.7.1975 of the afore-mentioned defendant Nos. 2 and 3 is legal. If so, its effect? 8. Whether the plaintiffs are entitled to any relief?” (English Transaction by the Court) 11. Issues 2 and 7 were decided together by Trial Court and it upheld lease-deed dated 20.10.1948 executed in favour of Sri Radha Krishna, husband of Smt. Kumari Devi, plaintiff 1 and father of plaintiffs 2 and 3. If so, its effect? 8. Whether the plaintiffs are entitled to any relief?” (English Transaction by the Court) 11. Issues 2 and 7 were decided together by Trial Court and it upheld lease-deed dated 20.10.1948 executed in favour of Sri Radha Krishna, husband of Smt. Kumari Devi, plaintiff 1 and father of plaintiffs 2 and 3. The lease-deed dated 4.7.1975, claimed to have been executed by Board, in favour of defendants 2 and 3, was held illegal. Consequently, plaintiffs were held entitled to be considered for renewal of lease and hence suit was decreed vide judgment and decree dated 30.5.1979. 12. Two appeals were filed, one by defendant 1 being appeal No. 76 of 1979 and another by defendants 2 and 3 i.e. civil appeal No. 81 of 1979. The lower Appellate Court for its purposes formulated following three points: 1. Whether the lease-deed relied upon by the plaintiff-respondents is not a valid document ? 2. Whether the plaintiffs are entitled to get the lease in question renewed as alleged? 3. Whether the impugned notice under Section 326 of the Municipalities Act is illegal ? 13. It confined discussion with respect to Exhibit 4 i.e. lease-deed dated 20.10.1948 and held that a document being unregistered, was invalid, and did not create any right or interest in immoveable property in favour of plaintiffs. The rest of the two points, in view of findings in respect to issue No. 1, were also decided against plaintiffs and consequently both the appeal were allowed, and, the suit was dismissed. 14. The only question, thus, considered by lower Appellate Court was regarding registration of lease-deed dated 20.10.1948 and its effect. It is in this context, questions No. 2 and 3 were formulated by this Court. Since in respect to various reasons and findings recorded by Trial Court, while considering issues No. 2 and 7 framed in the suit, there is no discussion by lower Appellate Court, and no reason has been assigned, though it has passed decree of reversal, this Court formulated question No. 1 so as to find out whether lower Appellate Court had complied with the requirement of Order XLI Rule 31 C.P.C. 15. No provision has been shown in Municipalities Act, 1916 (hereinafter referred to as “Act, 1916”) with respect to execution of an instrument which may or may not require registration, if otherwise so required under Registration Act, 1908 (hereinafter referred to as “Act, 1908”) or under the provision of Act, 1882. Therefore, the question that Act 1916 may or may not override provisions of Act, 1908 in the matter of requirement of registration of the lease-deed in question does not arise. The Act, 1916 having no otherwise provision, regarding registration, this matter would have to be governed by Act, 1908, and if applicable, by Act, 1882. 16. The real substantial question of law would be, whether lease-deed dated 20.10.1948 was required to be registered compulsorily either under Act, 1908 or Act, 1882. I straight-way come to Section 49 of Act, 1908 as stood at the relevant time i.e. 1948 when the deed in question dated 20.10.1948 was executed, which provides effect of non registration of a document required to be registered and it reads as under: “Section 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) or of any other law for the time being in force, to be registered shall : (a) affect any immovable property comprised therein, or (b) confer any power or create any right or relationship, or (c) be received as evidence of any transaction affecting such property or conferring such power or creating such right or relationship, 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 part-performance of a contract for the purposes of Section 53-A of the Transfer of Property Act, 1882 (4 of 1882), or as evidence of any collateral transaction not required to be effected by registered instrument.” 17. Section 49 takes this Court to Section 17. The kind of instrument with which this Court is concerned is covered by Section 17(1)(d) which read as under: “17. Section 49 takes this Court to Section 17. The kind of instrument with which this Court is concerned is covered by Section 17(1)(d) which read as under: “17. Documents of which registration is compulsory.—(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866(XX of 1866), or the Indian Registration Act, 1871 (VII of 1871, or the Indian Registration Act, 1877(III of 1877), or this Act came or comes into force, namely : .................. (d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;” 18. The proviso to Section 17(1) empowers State Government (earlier it was Provincial Government but substituted by A.O. 1950 as State Government) may by order published in official Gazette exempt from operation of sub-section, any leases executed in a district or part of a district, the terms granted by which do not exceed five years and annual rents reserved by which do not exceed 50 years. 19. It is however, nobody’s case that any such notification in respect to area to which this matter relates, under Section 17(1) proviso of Act, 1908, has been issued. 20. The lease in Form B in respect to municipal land was for a period of 30 years commencing from 1.4.1944 on a yearly rent of Rs. 6/-. The lease was executed after confirmation of the agreement by Collector, Pilibhit and he was also a signatory to the said document. The provision of registration is mandatory. In the present case, I find no reason to hold that document in question was not compulsorily registrable under Section 17 of Act, 1908. In case of non registration, as a natural corollary, it was bound to attract consequences provided in Section 49 of Act, 1908. It thus cannot be doubted that exhibit 4 i.e. lease-deed dated 20.10.1948, made the basis of suit by plaintiff’s-appellant’s inadmissible in evidence. Neither it could have been admitted in evidence by Courts below nor otherwise could have conferred any right upon plaintiffs or their predecessor in interest in respect to property which was subject-matter of alleged lease-deed. 21. It thus cannot be doubted that exhibit 4 i.e. lease-deed dated 20.10.1948, made the basis of suit by plaintiff’s-appellant’s inadmissible in evidence. Neither it could have been admitted in evidence by Courts below nor otherwise could have conferred any right upon plaintiffs or their predecessor in interest in respect to property which was subject-matter of alleged lease-deed. 21. That being so, the suit of plaintiffs was bound to be dismissed since no mandatory injunction or relief, as sought by him founded on the lease-deed dated 20.10.1948 was admissible in law since the document was not registered one and hence conferred no right, interest etc. on the plaintiffs-appellants so as to enforce the same or enforce the terms and conditions of such document. 22. I, therefore, answer questions No. 2 and 3 against plaintiffs appellants and hold that in absence of any provision in Act, 1916, provisions of Act, 1908 or any other statute making registration of a lease-deed compulsorily registrable, would apply. The lease-deed dated 20.10.1948 was compulsorily registrable. Since there is no otherwise provision in the Act, 1916 the question of its overriding Act, 1908 does not arise at all. 23. Now coming to question No. 1, the law is well-settled that without upsetting findings recorded by Trial Court, lower Appellate Court could not have passed a judgment of reversal since it would be in the teeth of requirement of Order XLI, Rule 31 C.P.C.. This issue has recently been considered by this Court in Second Appeal No. 1172 of 1978 (Lorik v. Hanuman Prasad and others) decided on 4th March, 2013. 24. However, this by itself would not make any difference in the case in hand for the reason that Trial Court without looking into the question that instrument or lease-deed, it had admitted in evidence, was not so admissible by virtue of Section 49 of 1908 Act, and, since there is a clear and patent error of law on the part of Trial Court, in not having considering this aspect of the matter, which would have gone to the root of the issue, the same has rightly been looked into by lower Appellate Court, and, once document itself became inadmissible in evidence, question of looking into other reasoning and findings considered by Trial Court, to uphold the said document could not have arisen. The question No. 1 is accordingly answered. 25. The question No. 1 is accordingly answered. 25. In view of the above, the judgment of lower Appellate Court, in so far as it has dismissed the suit, holding that plaintiffs-appellants are not entitled for any relief, since lease-deed dated 20.10.1948, whereupon they had founded their entire case, being an unregistered document, did not confer any right or interest upon them in the immoveable property concerned, I am in agreement with lower Appellate Court that the suit was bound to be dismissed. Therefore I find no reason to interfere with the said judgment. 26. The appeal is accordingly dismissed with cost throughout. ——————