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Uttarakhand High Court · body

2014 DIGILAW 543 (UTT)

Sardarni Manjit Kaur v. Dhan Prakash

2014-12-01

SERVESH KUMAR GUPTA

body2014
ORDER By means of this revision, the defendant/tenant has challenged the validity of the judgment and order dated 5.4.2014, adjudicating the SCC Suit No. 36/2010, whereby the learned District Judge has decreed the suit and has directed the tenant to handover the vacant, actual, physical possession of the premises in dispute to the plaintiff. Further, the tenant has also been directed to pay the charges for unauthorized use and occupation @ Rs. 200/- per day from 16-6-2010 till the date of actual handing over of possession along with Rs. 1,000/- as cost of notice. 2. The admitted facts between the parties are that Sardarni Manjit Kaur entered into a lease deed with the landlord Dhan Prakash on 31.3.1998 and the lease commenced w.e.f. 1.4.1998. Tenanted property is a shop situated in the Kurli Market, Mussoorie, District Dehradun. As per the covenant No. 2 of the deed, it was settled that the Lessee shall pay the lease rent in the following manner to the Lessor; Rs. 40,000/- (Rs. Forty thousands only) for the year 1998-99, Rs. 50,000/- (Rs. Fifty thousands only) for the year 1999-2000, Rs. 50,000/- (Rs. Fifty thousands only) for the year 2000-2001. And from the year 2001 i.e. from 1st April 2001 onwards, with an yearly increase of Rs. 1,000/- (Rs. One thousand only) in the lease rent every year in future, the Lessee continues to be in the possession of the shop in question, with an option with the Lessee to determine the lease with 30 days prior notice to the Lessor any time in future. It was further settled that payment of rent will be made Rs. 10,000/- in advance up to 31st March and balance payment of rent on or before 30th June that year. There were other terms also in the deed as regards to the payment of electricity charges and structural alternations, etc., but the same are not relevant to adjudicate this matter in this revision. 3. The tenant, thus, continued her tenancy with the consent of the landlord as per the covenants in the deed up to March 2010. But as per the term, when the advance payment of Rs. 10,000/- for the coming financial year was offered, the landlord refused to receive such advance and instead issued a notice dated 28.3.2010 terminating the tenancy of the revisionist. That notice was duly replied by the tenant on 15.6.2010. But as per the term, when the advance payment of Rs. 10,000/- for the coming financial year was offered, the landlord refused to receive such advance and instead issued a notice dated 28.3.2010 terminating the tenancy of the revisionist. That notice was duly replied by the tenant on 15.6.2010. When the shop, in question, was not vacated by the tenant, a suit No. 36/2010 was presented by the landlord in August 2010, which was decreed by the impugned judgment, as has been stated above. 4. I have heard the rival contentions put forth by the learned Advocates of both the parties. 5. It was argued by the learned Counsel of the revisionist that the lease, in question, was in perpetuity as there was no stipulation giving the liberty to the Lessor to terminate the lease. Rather, the liberty was conferred to the Lessee only to determine the lease by way of giving one month's prior notice, but this liberty was not conferred to the landlord by any one of the stipulations contained in the deed, in question. So, such a perpetual lease could not have been terminated by way of giving the notice dated 28.3.2010. 6. This Court does not agree with such argument of learned Counsel for the revisionist because of the application of Section 17 of the Registration Act, 1908 as well as Section 107 of the Transfer of Property Act, 1882. Section 17(1)(d) of the Registration Act provides that leases of immovable property from year to year, or for any term exceeding one year, or reserving an yearly rent, can be made only by a registered instrument. Similarly, Section 107 of the Transfer of Property Act envisages that 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. Meaning thereby that if a lease is made for a term of more than one year, as it happens to be in the instant case, then the instrument ought to have been compulsorily registered by the parties, as envisaged under the Registration Act as well as under the Transfer of Property Act. 7. Meaning thereby that if a lease is made for a term of more than one year, as it happens to be in the instant case, then the instrument ought to have been compulsorily registered by the parties, as envisaged under the Registration Act as well as under the Transfer of Property Act. 7. Further, Section 49 of the Registration Act provides the effect of non-registration of the document required to be registered and says that no document, required by Section 17 of the Act to be registered, shall affect any immovable property comprised therein, unless it has been registered. For the sake of convenience, Section 49 is reproduced as below: '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.' 8. However, such document can be read only for collateral purposes, but so far as its validity is concerned, it can never be accepted as a valid document, and if the document is not valid then it is not admissible in the evidence to establish the covenants/terms and the relationship between the parties. Even though, the fact remains that the revisionist occupied the premises, in question, as a tenant with the consent of the landlord up to 28.3.2010, and is still occupying the same as a tenant at hold. 9. Learned Counsel of the revisionist has relied upon a precedent of Full Bench of the Hon'ble Apex Court rendered in Anthony v. K. C. Ittoop & Sons & others, (2000) 6 SCC 394 : ( AIR 2000 SC 3523 ). In that case, the building was given on rent for five years and thus the tenant was inducted into the possession thereof. Though the lease deed was written between the parties, but it was not got registered. In that case, the building was given on rent for five years and thus the tenant was inducted into the possession thereof. Though the lease deed was written between the parties, but it was not got registered. In that eventuality, the Hon'ble Apex Court held that if the tenant was paying, or had agreed to pay the monthly rent, then notwithstanding of the execution of an unregistered lease deed for a period exceeding one year, the relationship between them held to be of the landlord and the tenant. Hence, after commencement of Kerala Buildings (Lease and Rent Control) Act, 1965, such person became a statutory tenant and could not be evicted without moving the statutory application before the Rent Control Court. In that case, the building under the tenancy was for a monthly rent of Rs.140/- and the tenant was inducted in possession on 4.1.1974. The Kerala Rent Act was already in force since 1965. So, the premise to ask the landlord to go to the Rent Control Court was that in the opinion of the Hon'ble Apex Court, such a tenant was a statutory tenant, but due to the non-registration of the lease deed, this lacuna affected the validity of such deed. Nonetheless, what had happened between the parties in respect of the property became a reality. None-registration of the document had caused only two consequences. One is that no lease exceeding one year was created. Second is that the instrument became useless so far as creation of the lease is concerned. Nonetheless the presumption that a lease not exceeding one year stood created by conduct of parties remained unrebutted. 10. If the ruling so relied by the learned Counsel is taken into consideration, then it lays down the law that since the landlord continued to accept the tenancy every year and received the rent uninterruptedly for ten years, then there was a jural relationship between the two and he was a statutory tenant. So, the landlord was asked to knock the door of Rent Control Court under the Kerala Rent Act. 11. So, the landlord was asked to knock the door of Rent Control Court under the Kerala Rent Act. 11. Although the given facts are similar, but at the same time, the law of U.P. Rent Control Act, as is applicable in the State of Uttarakhand also, creates a bar by virtue of Section 2(g) of the said Act, which contemplates that nothing in this Act shall apply to any building, whose monthly rent exceeds two thousand rupees. This cap of amount was introduced w.e.f. 26.9.1994, and the building was given on rent in the present case on 1.4.1998 on initial yearly rent of Rs. 40,000/- which is much more than Rs. 24,000/- a year, as adumbrated in Section 2(g) of the Act, viz., on the tenanted premises, the said Act does not apply. 12. The next argument of learned Counsel of the revisionist is that the building, in question, was given on rent for manufacturing purposes and the tenant is carrying on the business of garment manufacturing therein. This argument is not acceptable for the reason that nowhere, either in the pleadings or in the evidence produced by the tenant before the court below, it has been stated regarding the carrying on the business of garment manufacturing in the property, in question. In the absence of such averment or evidence, it is not acceptable that the tenancy was terminable with a six months prior notice. 13. In view of what have been stated above, I do not find any force in this revision. It is hereby dismissed. However, at the same time, I modify the operative portion of the impugned judgment as under: 'The suit of the plaintiff is decreed with costs against the defendant, and the defendant is ordered to hand over the vacant, actual, physical possession of the premises, in dispute, to the plaintiff within a period of six months from today. She is also directed to pay the rent strictly in accordance with the terms and stipulations of the lease deed, as reproduced in the body of the judgment too, till the actual handing over of the possession of the premises, in question.' 14. The money already deposited by the defendant/revisionist as rent during the proceedings of the court below as well as in this Court will be adjusted towards the payment due from the revisionist. 15. Let the lower court record be sent back. Revision dismissed.