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Allahabad High Court · body

2014 DIGILAW 1176 (ALL)

Indra Sharma v. Lt. Col. Satish Kumar Sharma

2014-04-10

OM PRAKASH VII, SANJAY MISRA

body2014
JUDGMENT Om Prakash-VII, J This First Appeal From Order has been filed by the appellants against the order dated 25.3.2006 passed by the Additional District Judge, Court No.3, Agra in Suit No.1041 of 2002 whereby the temporary injunction application has been allowed. 2. The facts are that the said suit was filed by the respondent no.1/ plaintiff against the appellants/ defendants and also respondent nos. 2 to 11/ defendants with the prayer for a decree for prohibitory injunction against the defendants and proforma defendants restraining them from transferring and sub-letting the property in question to any other person without consent of the plaintiff and they also be restrained from making any addition and alteration in the suit property otherwise in due course of law. A decree for mandatory injunction was also sought against the defendants in the form that they be directed to make the payment of rent to the plaintiff regularly. The respondent no.1, who is the owner of the property in dispute, leased-out it to defendant nos. 6 to 12 in the suit for a period of 10 years with effect from 1.4.1990 through registered lease deed creating right to the lessees to sub-let the property to any other person in part or in whole with the consent of the plaintiff. In lieu of that lease, the defendants, mentioned above, have leased- out the said property to the defendant nos. 1 to 5 in the suit on different rate of rents. The period of lease expired, therefore, the lessees had no further right created through the lease deed mentioned above. It is also a case that defendant nos. 1 to 5 in the suit were asked to make the payment of the rent regularly to the plaintiff but they did not pay heed over it. Notice had also been sent to the defendants but when they did not respond then on the basis of cause of action mentioned the suit with the relief mentioned above, has been filed against the defendants. 3.During pendency of the suit, an application (8C) for temporary injunction was filed by the plaintiff-respondent no.1 with the prayer that the defendant nos. 1 to 5 be directed to pay the rent of the disputed property to the plaintiff during pendency of the suit and defendant nos. 3.During pendency of the suit, an application (8C) for temporary injunction was filed by the plaintiff-respondent no.1 with the prayer that the defendant nos. 1 to 5 be directed to pay the rent of the disputed property to the plaintiff during pendency of the suit and defendant nos. 6 to 12 be restrained from transferring, alienating, sub-letting or changing the nature and shape of the disputed property without consent of the plaintiff during pendency of suit. 4.An objection was filed by the defendant nos. 6 to 10 on the temporary injunction in the court below mentioning therein that the plaintiff is not the sole owner of the disputed property. It is a joint family property obtained on lease for 90 years. Since plaintiff was manager (karta) of the family, he obtained the allotment order in his name taking the benefit of of his position. The lease deed executed in favour of defendant nos. 6 to 12 by the plaintiff has been admitted but it is mentioned that it was only in relation to the share of the plaintiff but not of the whole property. A fixed amount of rent has also been agreed, therefore, the defendants/ lessees have sub-let the disputed property to defendant nos. 1 to 5, which was continued. With the consent of the plaintiff, the period of lease was also extended on 13.8.1997 for 16 years. A memorandum of lease deed has also been executed between the parties. Therefore, the prayer had been made that plaintiff/ respondent no.1 is not entitled to resile from the memorandum of the lease deed and the prayer made in the temporary injunction application and also relief sought in the suit cannot be granted. 5. Affidavits and counter affidavits in temporary injunction application have also been filed by the parties before the court below. 6. The court below after hearing the parties passed the impugned order allowing the temporary injunction application observing that prima facie case, balance of convenience and irreparable loss are in favour of plaintiff. 7. Feeling aggrieved with the impugned order, the present first appeal from order has been filed on the grounds mentioned in the appeal and with the prayer that the impugned order be set aside and the appeal be allowed rejecting the temporary injunction application filed in the above mentioned suit by the plaintiff. It is further prayed that the defendant nos. Feeling aggrieved with the impugned order, the present first appeal from order has been filed on the grounds mentioned in the appeal and with the prayer that the impugned order be set aside and the appeal be allowed rejecting the temporary injunction application filed in the above mentioned suit by the plaintiff. It is further prayed that the defendant nos. 1 to 5 in the suit be directed to pay rent regularly to the appellants and other lessees. 8. Affidavits have been exchanged between the parties. We have heard Shri Ashok Nath Tripathi, learned counsel for the appellants and Shri Shashi Nandan, learned Senior Counsel assisted by Shri R.P. Dwivedi, learned counsel for the respondent no.1. Despite service of notice on other respondents, they did not put-in appearance and contest the appeal. 9. Learned counsel for the appellants has submited that although the lease deed dated 17.3.1990 was a registered lease deed for a period of 10 years in favour of lessees, but it has been renewed again on 13.8.1997 for 16 years before expiry of the period of the original lease deed. It was also submitted that sub-letting right had been given by the plaintiff-respondent no.1 to the appellant and other lessees, therefore, with the consent of the plaintiff, the disputed property was sub-let to the defendant nos. 1 to 5 upto 31.3.2016. Certain amount of the rent had to be paid to the plaintiff by the appellant/ other lessees and only plaintiff had no right to realize the rent from the sub-lessees directly. It is further submitted that the court below illegally construed the term and condition of the memorandum of lease executed in the year 1997 for extending the period of sub-lease and passed an illegal order for payment of rent directly to the plaintiff. Learned counsel referring the memorandum of lease referred above has also placed reliance on certain case laws and submitted that even if the memorandum of lease extending the period of sub-letting was not a registered document but it was executed with the consent of the plaintiff, therefore, for the purpose of sub-letting, the memorandum of lease referred to above were admissible in evidence. Thus, the Court below has committed illegality in passing the impugned order. In support of his above submissions, learned counsel for the appellants has placed reliance on the following decisions: 1. S. Kaladevi vs V.R. Somasundaram & Ors. Thus, the Court below has committed illegality in passing the impugned order. In support of his above submissions, learned counsel for the appellants has placed reliance on the following decisions: 1. S. Kaladevi vs V.R. Somasundaram & Ors. 2010 (110) R.D. 427 (S.C.) 2. Satish Kumar vs. Zarif Ahmad, (1997)3 SCC 679 3. A.V. Papayya Shastry and others vs. Government of A.P. & others, (2007) 4 SCC 221 . 10. In reply, Shri Shashi Nandan, learned Senior Counsel, admitting the execution of lease deed for 10 years on 17.3.1990, has submitted that the plaintiff/respondent no.1 never extended the period of lease in favour of the lessees to sub-let the property to defendant nos. 1 to 5 of the suit. Referring to the provision of Indian Registration Act, Shri Shashi Nandan, learned Senior Counsel has submitted that if original lease deed was a registered document and lease was for 10 years then it can only be extended by a registered lease deed. No right is accrued in favour of lessees through the memorandum of lease deed executed for 16 years in the year 1997 as these were not a registered document. Special reference has been made to the provision of Section 49 of the Indian Registration Act. 11. We have considered the submissions made by the learned counsel for the parties and have gone through the entire record carefully. 12. The admitted facts in the present matter are as follows: 1. Plaintiff/respondent no.1 is the owner of the disputed property. 2. A lease deed creating a right of sub-letting has been executed by the plaintiff in the year 1990 in favour of appellant and other lessees, which is a registered document. 3. The memorandum of lease deed, said to have been executed for the extension of period of lease of the disputed property is an unregistered document and has been entered into between the appellant and respondent nos.2 to 10. 13. Now, the question for consideration in the present matter is whether the court below has rightly construed a prima facie case in favour of the plaintiff/ respondent no.1 and it is also to be seen that whether the impugned order passed by the court below is in conformity with the facts and law. 14. For deciding the temporary injunction application in any matter, the court has to see prima facie case, balance of convenience and irreparable loss. 14. For deciding the temporary injunction application in any matter, the court has to see prima facie case, balance of convenience and irreparable loss. It is mentioned here that prima facie case does not mean the prima facie title. Relevant portion of the impugned order is quoted below: ^^rnuqlkj izkFkZuk i= 8x Lohdkj fd;k tkrk gS vkSj izfroknhx.k dks nkSjku okn oknkLin lEifRr dks vU; fdlh dks vUrfjr djus] oknh dh vuqefr ds fcuk f'kdeh fdjk;s ij mBkus o mlesa ewyHkwr ifjorZu djus ls tfj;s vrafje C;kns'k nkSjku okn fu"ksf/kr fd;k tkrk gS vkSj tfj;s vrafje vkns'kkRed C;kns'k izfroknhx.k la0 1 yxk;r 5 dks funsZf'kr fd;k tkrk gS fd og nkSjku okn fdjk;s dh ns; /kujkf'k dk Hkqxrku oknh dks djsxsaA** 15. A perusal of the impugned order shows that this order contains two parts. First part is relating to restraint on transfer, alienation, sub-letting and changing the nature of the disputed property. The second part contains direction to the defendant nos. 1 to 5 in the suit to pay the rent to the plaintiff/ respondent no.1. 16. Learned counsel for the appellants has not challenged the first part of the impugned order but has vehemently challenged the second part on the basis of the said unregistered memorandum of lease-deed referring to the propositions drawn in the above mentioned decisions of the Supreme Court. 17. In S. Kaladevi case (supra), the Supreme Court has held as under (paragraphs 10 and 11 of the said judgement): "10. Section 17 of 1908 Act is a disabling section. The documents defined in clauses (a) to (e) therein require registration compulsorily. Accordingly, sale of immovable property of the value of Rs. 100/- and more requires compulsory registration. Part X of the 1908 Act deals with the effects of registration and non- registration. Section 49 gives teeth to Section 17 by providing effect of non-registration of documents required to be registered. Accordingly, sale of immovable property of the value of Rs. 100/- and more requires compulsory registration. Part X of the 1908 Act deals with the effects of registration and non- registration. Section 49 gives teeth to Section 17 by providing effect of non-registration of documents required to be registered. Section 49 reads thus: "S.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 (3 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument." 11. The main provision in Section 49 provides that any document which is required to be registered, if not registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property. Proviso, however, would show that an unregistered document affecting immovable property and required by 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. By virtue of proviso, therefore, an unregistered sale deed of an immovable property of the value of Rs. 100/- and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. 100/- and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. When an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of 1908 Act." 18. In Satish Kumar case (supra), the Supreme Court has held as under (paragraph 5 of the said judgement): "5. The proviso is not applicable to the facts in this case and, therefore, it is not necessary to look into the exceptions engrafted vis-a-vis receipt of a documents comprising of three circumstances mentioned therein, namely, unregistered document used for therein, namely, unregistered document used for enforcement of specific performance under the Specific Relief Act or used as an evidence of part performance of the contract under Section 53-A of the TP Act or using evidence for collateral transactions. The combined effect of all the provisions is that an unregistered leases deed executed from month to month for a period not exceeding 11 months, though reduced to writing and possession is delivered thereunder to a tenant, is not a compulsorily registerable instrument and, therefore, the prohibition contained in Section 49 of the Registration Act is inapplicable. Therefore, the document is admissible in evidence to consider the effect of the immovable property contained therein or to receive as an evidence of any transaction vis-a-vis such property." 19. Reliance has been placed on A.V. Papayya Sastry case (supra) to show fraud committed during the pendency of the case in the Court. Although this judgement has been referred to show that the matter is still pending for adjudication and the contesting appellants/ defendants have claimed ownership of the disputed property, but fraudulently the Court below has released the amount of rent deposited in the court in favour of the plaintiff/ respondent no.1. 20. Although this judgement has been referred to show that the matter is still pending for adjudication and the contesting appellants/ defendants have claimed ownership of the disputed property, but fraudulently the Court below has released the amount of rent deposited in the court in favour of the plaintiff/ respondent no.1. 20. It is pertinent to mention here that for deciding the present first appeal from order the question regarding release of rent amount is not relevant at this juncture specifically when the court below has released the amount following its earlier order on the basis of furnishing of security by the plaintiff/ respondent no.1. 21. It is settled law that if any lease-deed is executed for month to month or for 11 months, then there is no necessity for registration of the deed. It is also settled that an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. 22. In the present matter, initially a lease-deed was executed on 17.3.1990 for 10 years creating right in favour of the appellants and respondent nos. 7 to 11. The term/ period of the said lease was for 10 years, therefore, it was registered by the parties. It is the case of the appellants themselves that vide memorandum of lease deed, referred above, term of the lease was extended for 16 years in the year 1997. Meaning thereby it was not a month to month lease or 11 months lease but it was for more than one year. The court below construing the prima facie case in favour of the plaintiff/ respondent no.1 has observed that there was no case of the appellants and other contesting defendants regarding holding over of the tenancy and term of the original lease deed has been expired. The plaintiff has denied of any consent for executing of the memorandum of lease deed, therefore, prima facie case has been found in favour of the plaintiff/ respondent no.1. The finding arrived at by the court below regarding prima case, in our view, cannot be said to be illegal, perverse and against the facts and law applicable to the present case. The court below, while allowing the temporary injunction application, has rightly directed the respondent nos. 2 to 6 to pay the rent amount to the plaintiff/ respondent no.1. The finding arrived at by the court below regarding prima case, in our view, cannot be said to be illegal, perverse and against the facts and law applicable to the present case. The court below, while allowing the temporary injunction application, has rightly directed the respondent nos. 2 to 6 to pay the rent amount to the plaintiff/ respondent no.1. This finding is also not liable to be interfered with on account of the fact that the ownership of the disputed property lies with the plaintiff/ respondent no.1 and the pleas taken by the appellants and other contesting defendants are yet to be adjudicated for which evidence would be required. Thus, we do not find any error, illegality or infirmity in the finding recorded by the court below on the point of prima facie case in favour of the plaintiff/ respondent no.1. 23. Submission of the learned counsel for the appellants that accepting the rent from respondent nos. 2 to 6 will amount renewal of lease-deed is not acceptable. This fact is not sufficient to disturb the finding of lower court on the point of prima facie case, balance of convenience and irreparable loss. 24. In view of the above discussions, we are of the view that the present first appeal from order lacks merits and is liable to be dismissed. 25. The first appeal from order is dismissed. 26. No order as to costs.