Research › Search › Judgment

Madhya Pradesh High Court · body

2015 DIGILAW 1208 (MP)

Girdhar Jetha v. Municipal Corporation

2015-11-27

K.K.TRIVEDI, RAJENDRA MENON

body2015
JUDGMENT : K.K. TRIVEDI, J. 1. This First Appeal under Section 96 of the Code of Civil Procedure by the appellants/plaintiffs takes exception to the judgment and decree dated 24.6.2004, passed in Civil Suit No. 51-A/2004, by the VI Addl. District Judge, Jabalpur, by which the suit for grant of mandatory injunction filed by the appellants/plaintiffs, has been dismissed. 2. The appellants/plaintiffs filed the suit alleging that the appellant No. 2 was the successor of the earlier Coronation Club, of Jabalpur which in fact was extended a lease by the Municipal Corporation, Jabalpur, in respect of the land bearing diversion Plot No. 107, Sheet No. 85, situated in Marhatal, Jabalpur. The said land was belonging to the Municipal Corporation Jabalpur. The lease was to expire in the year 1956. However, no renewal of the lease was done thereafter. The appellant/plaintiff No. 2-Club remained in possession of the said land and out of the said land leased to the appellants/plaintiffs, a part of the land was encroached by some persons. Thereafter, in the meeting held with the authorities of the Municipal Corporation, it was decided that on payment of certain compounding charges, the lease would be renewed in favour of the plaintiff No. 2-Club and the Corporation Authority would remove the encroachment made by others on the land leased to the appellants and would put the appellants/plaintiffs in possession. Accordingly, on 19.12.1989, the lease was renewed for a period of 60 years, out of which the period of 30 years was treated to regularised the lease, which had expired on 12.2.1956 and from 13.2.1986, the lease of the land was granted for a period of next 30 years. In terms of the settlement between the Corporation and the office bearers of the plaintiff No. 2-Club, since it was decided that a part of the land was to be released in favour of the Municipal Corporation for the purposes of construction and widening of the road, a total area of 70264 sq. ft was leased out to the appellants/plaintiffs. 3. In terms of the lease, out of the total area allotted, 27600 sq. ft land was to be used for commercial purposes and remaining 42664 sq. ft land was to be used for residential purpose. While executing the lease deed, certain conditions were prescribed in the lease deed. ft was leased out to the appellants/plaintiffs. 3. In terms of the lease, out of the total area allotted, 27600 sq. ft land was to be used for commercial purposes and remaining 42664 sq. ft land was to be used for residential purpose. While executing the lease deed, certain conditions were prescribed in the lease deed. The appellants/plaintiffs after execution of the lease deed deposited the amount, but for a considerable long time, no action whatsoever was taken by the Municipal Corporation to remove encroachment from the land and to put the appellants/plaintiffs in possession of the said land. In the year 1999, ultimately, the land was got vacated by the Municipal Corporation by removing the encroachment, but instead of putting the appellants/plaintiffs in possession of the said land, the Corporation started using the land for its own purposes. Threatening the appellants/plaintiffs that since there was breach of the lease condition, a notice was issued to the appellants/plaintiffs of which a reply was submitted, but since there was a threat, the suit was required to be filed, seeking a mandatory injunction against the respondent Corporation to put the appellants/plaintiffs in possession of the land so leased out. The relief to that extent was claimed in the suit. 4. While filing the written statement, the respondent/ defendant contested the claim of the appellants/plaintiffs inter alia on the ground that the leased land was used by the appellants/plaintiffs for the commercial purposes and holding exhibitions by subletting the same to the other individuals without the consent of the respondent/ defendant. In fact, after coming into know about the said fact, action was taken by the Corporation and taking recourse to the provisions of the Municipal Corporation Act, 1956, the encroachers were removed from the said land and possession of the same was taken by the Municipal Corporation. Since the object of granting lease to the appellant was to provide certain curriculum activities and facilities to the citizen of the City, which object was frustrated because of the illegal act of the appellants/plaintiffs by subletting the land, the lease automatically become non est and ineffective to that extent. Now the land is being used by the respondent defendant for the purposes of keeping the Government vehicle on the said land and as such, the relief as claimed in the suit cannot be granted. Now the land is being used by the respondent defendant for the purposes of keeping the Government vehicle on the said land and as such, the relief as claimed in the suit cannot be granted. As a whole, the claim made by the appellants/plaintiffs in the suit was denied by the respondent/defendant. 5. The trial Court framed the issues which for the purposes of convenience are reproduced and translated in English :- ^^1¼1½&,& D;k oknh dks oknxzLr LFkku Mk;olZu IykV ua0& 107 Mk;olZu 'khV ua0 85 e<+krky tcGiqj dqG ,fj;k 92352 oxZQhV dh Ght izfroknh ds }kjk o"kZ 1926 ls iznku dh xbZ gS vkSj ftls lu~&2016 rd ds fy;s fjU;w uohuhdj.k ds Ght MhM fnukafdr 19-12-1989 ds }kjk fd;k x;k gS\ ch & ;fn gkWa rks D;k oknh bl vk'k; dh ?kks"k.kk dh lgk;rk izkIr djus dk vf/kdkjh gSa\ 2&,& D;k izfroknh ds }kjk okni= ds lkFk layxu uD'ks esa nf'kZr LFkku dks vius dSats esa Gs fG;k x;k gS vkSj izfroknh mDr LFkku ij fuekZ.k dk;Z djuk pkgrk gSa\ ch& ;fn gkWa rks D;k oknh izfroknh ds fo:) bl vk'k; dh vkns'kkRed fu"ks/kkKk izkIr djus dk vf/kdkjh gS fd izfroknh oknxzLr LFkku ls viuk dSatk gVkdj oknh dks dSatk lkSais\ 3- D;k oknhx.k us Ght ij vkoafVr Hkwfe dk Ght&MhM 'krksZa dk mYya?ku djrs gq;s nq:i;ksx fd;k gS] ;fn gkWa rks izHkko\ 4- lgk;rk ,oa O;;\** "(1-A) : Whether the plaintiff was granted lease of diversion Plot No. 107, Sheet No. 85, Marhatal, Jabalpur, Total area 92353 sq. ft. by the defendant in 1926 and which has now been renewed upto 2016 vide lease deed dated 19.12.1989 ? (B) : If yes, whether the plaintiff is entitled to a declaration to this effect ? (2-A) : Whether the defendant has taken in possession the land shown in the attached map and is intending to make any construction on the said land ? (B) : If yes, whether plaintiff can be granted a decree of mandatory injunction to put the plaintiff in possession of the said land after removal of the possession of the defendant ? (3) Whether plaintiff has violated any of the conditions of the lease deed, if yes, the effect ? (4) Reliefs and Costs ?" 6. After framing the aforesaid issues, the trial Court recorded the evidence of the parties. (3) Whether plaintiff has violated any of the conditions of the lease deed, if yes, the effect ? (4) Reliefs and Costs ?" 6. After framing the aforesaid issues, the trial Court recorded the evidence of the parties. Plaintiffs examined the Secretary of the plaintiff No. 2-Club, the plaintiff No. 1 and the respondent/defendant examined two persons. Various documents were produced, original record was also produced by the Municipal Corporation and some of the documents placed on record were exhibited. After assessing the evidence available on record, the trial Court reached to the conclusion that the appellants/plaintiffs have failed to prove the case and dismissed the suit. Hence, this appeal. 7. It is, vehemently, contended by learned counsel for the appellants that dismissal of the suit was not justified in view of the fact that a statutory duty was cast upon the respondent Corporation in terms of the provisions of Transfer of Property Act, more particularly, in terms of provisions of Section 108(b) of the said Act. For the purposes of appreciation, sufficient evidence was available on record to show that the duty is the statutory duty cast on the respondent/defendant but was not discharged even when the fees for the renewal of the lease was taken from the appellants/plaintiffs. Further, it is contended that in terms of law well explained by the Apex Court, every renewal of the lease is in fact a fresh grant and, therefore, the provisions of Section 108 of the Transfer of Property Act would be squarely applicable. In view of the aforesaid, the findings recorded by the trial Court cannot be sustained. There cannot be any breach alleged against the appellants/plaintiffs in the matter of terms and conditions of the lease deed in view of the fact that the entire land was never put in possession of the appellants/plaintiffs. The fact remains that in terms of lease conditions, the appellants have obtained sanction from the Municipal Corporation itself for construction of the building, but for the reason that the land was not made available to the appellants/plaintiffs, the construction could not be done. Because of such conduct of the respondent/defendant any action was not to be taken against the appellants/plaintiffs as the said right was waived by the respondent/defendant. Because of such conduct of the respondent/defendant any action was not to be taken against the appellants/plaintiffs as the said right was waived by the respondent/defendant. Explanation in all that respect was given, evidence was produced, but the same was not looked into by the trial Court and the finding is recorded that the decree as claimed cannot be granted to the appellants/plaintiffs. According to learned Senior counsel, such findings are perverse and deserve to be set aside. The appellants/ plaintiffs are entitled to the decree as claimed. 8. Per contra, it is contended by learned counsel appearing for the respondent/defendant that prima facie the suit itself was not maintainable. He admits that though a preliminary objection to that extent was never raised before the trial Court, but relying on the decision of the Apex Court, submitted that such objection can be taken at any stage even before the appellate Court as the factual aspect is not to be considered and admitted positions are not to be ignored. Putting reliance in several cases, it is contended that the suit simpliciter for grant of mandatory injunction for possession was not maintainable in view of the fact that the possession of a land is to be claimed under Section 5 of the Specific Relief Act and no injunction to that extent can be granted under Section 39 of the aforesaid Act. It is contended that the issue raised in respect of the claim is squarely covered by a decision rendered by this Court in Writ Petition No. 2660/2001, decided on 2.4.2002, wherein these aspects have been considered by the Court. Further, since the appellants/plaintiffs were party to the said writ proceedings, which order has not been called in question anywhere, the appellants/plaintiffs were not entitled to any decree and the suit was rightly dismissed. It is next contended by learned counsel for the respondent/ defendant that the entire claim is made on the basis of unregistered document which is inadmissible in evidence in terms of provisions of Section 17 of the Registration Act. The consequence of such is in Section 49 of the said Act and, therefore, even otherwise the relief as claimed in the suit, was not to be granted to the appellants/plaintiffs. The consequence of such is in Section 49 of the said Act and, therefore, even otherwise the relief as claimed in the suit, was not to be granted to the appellants/plaintiffs. In fact, it was a case where the land was already surrendered or impliedly surrendered in favour of the respondent/defendant in terms of the provisions of Section 108 of the Transfer of Property Act, and therefore, if considering all these aspects, where specific pleadings in paragraphs 5, 6 and 9 of the written statement were raised, there was no question of granting any relief to the appellants/plaintiffs. Even otherwise because of the breach of the conditions of lease, the appellants/plaintiffs were not entitled to the reliefs claimed and as such, the suit has rightly been dismissed, which judgment and decree need no interference in this appeal by this Court. 9. Refuting such submissions raised by learned counsel for the respondent/defendant, learned Senior counsel for the appellants/plaintiffs would contend that the suit for grant of mandatory injunction in such circumstances is maintainable where a statutory contract is executed in between the appellants/plaintiffs and the defendant/ respondent. The respondent Corporation was duty bound to put the appellants/plaintiffs in possession of the land in terms of the lease executed and for that statutory performance, a suit for mandatory injunction is maintainable. It is not a case that a private individual is being asked to put somebody in possession, who was dispossessed from the said property unauthorisedly, for which purpose, the suit under Section 5 of the Specific Relief Act on payment of ad valorem Court Fee is required to be filed. Thus, such an objection regarding maintainability of the suit was not required to be considered at all. The other aspect is that the appellants/plaintiffs herein, more particularly, the appellant No. 2 was the party to the writ proceedings as a respondent with the Municipal Corporation. The writ petition was filed by those who were the encroachers on the land so leased out to the appellants/plaintiffs and who were removed by the Municipal Corporation. The relief was claimed against the Municipal Corporation by the said persons. The reference to the agreement in between appellants/plaintiffs herein and the respondent/defendant Municipal Corporation was made in the said writ petition and for that purpose, the appellants/plaintiffs were impleaded as a respondent in the said writ proceedings. The relief was claimed against the Municipal Corporation by the said persons. The reference to the agreement in between appellants/plaintiffs herein and the respondent/defendant Municipal Corporation was made in the said writ petition and for that purpose, the appellants/plaintiffs were impleaded as a respondent in the said writ proceedings. Since there was no inter se dispute in between the present appellants/plaintiffs and the Municipal Corporation in that writ proceedings, any judgment delivered in the said case would not operate as res judicata in the matter of claim made by the appellants/plaintiffs in the suit. Therefore, the provisions as have been pointed out by the respondent/defendant would not be attracted at all. The well settled law is that for aforesaid purposes, a suit for mandatory injunction for delivery of possession is permissible in law. For the purposes of establishing a right, even an unregistered document can be placed on record, because no title is being claimed on the basis of such a document and, therefore, provision of Section 17 of the Registration Act, would not be attracted. Rather, the exception of the said Chapter of the Act would be applicable in the case of appellants/plaintiffs. Thus, it is contended that the impugned judgment and decree is liable to be set aside and the appellants/plaintiffs are entitled to the reliefs claimed in the suit. 10. We have heard learned counsel for the parties at length and we have examined the record of the trial Court minutely. 11. To appreciate the real controversy involved in the appeal, we have to record certain admitted facts by the parties or the facts which have been found proved by the trial Court and are not challenged before us in this appeal. In short, the said facts are recorded hereunder :- (i) There was a lease deed executed in favour of Coronation Club of Jabalpur for a period of 30 years, as was admitted by the defendant/respondent. The said lease was to expire in the year 1956. (ii) The appellant/plaintiff Jabalpur Club was the successor of the Coronation Club of Jabalpur and had continued in possession of the land pursuance to the lease executed in the year 1926, even after expiry of the period of lease in the year 1956. The said lease was to expire in the year 1956. (ii) The appellant/plaintiff Jabalpur Club was the successor of the Coronation Club of Jabalpur and had continued in possession of the land pursuance to the lease executed in the year 1926, even after expiry of the period of lease in the year 1956. (iii) No efforts were made by the Municipal Corporation, Jabalpur, to take back the possession of the land from the Jabalpur Club, after expiry of the lease of the year 1926. The Jabalpur Club had also not delivered back the possession of the land leased to it, to the lessor (iv) The fact relating to encroachment on the land so leased to the appellant/plaintiff Jabalpur Club came to the notice of the respondent/defendant much before, but even then no enquiry whatsoever was conducted as to whether the plaintiff No. 2 Jabalpur Club was responsible for parting with the possession of the said land to the encroachers in any manner. (v) The notice in respect of alleged breach was issued by the Municipal Corporation to the Jabalpur Club only on 14.7.1988 (Ex.P/4) in which also the fact was recorded that there was no renewal of the lease of the year 1926 after its expiry in the year 1956, even then the appellant/plaintiff Jabalpur Club was in possession of the land. (vi) Thereafter, meetings were held in between office bearer of Jabalpur club and the officials of the Municipal Corporation for renewal of the lease. Proposal to that extent was given on 21.9.1988 vide Ex.P/12 by the Municipal Corporation. (vii) Ultimately, decision in terms of the aforesaid talks was taken and communication was sent on 1.9.1989 Ex.P/13. The amount as demanded was deposited by the plaintiff-Jabalpur Club with the Municipal Corporation and in terms of the settlement between the office bearer of Jabalpur Club and officials of the Municipal Corporation reached in the meeting held on 21.9.1988, further actions were taken. Proceedings of meeting is Ex.P/40. (viii) Ultimately, in terms of aforesaid talks, renewal of the lease was done on 19.12.1989 for a complete period of 60 years including the regularisation of the lapsed period of lease with effect from 13.2.1956, till 12.2.1986 and the rest of the period of 30 years to be concluded on 13.2.2016. (ix) In fact, there was no revocation of lease by the Municipal Corporation Jabalpur, till the date of suit. 12. (ix) In fact, there was no revocation of lease by the Municipal Corporation Jabalpur, till the date of suit. 12. Now, we are required to deal with the preliminary objection raised by the learned counsel for the respondent/ defendant regarding the maintainability of the suit for grant of mandatory injunction. As has been pointed out herein above, it has been vehemently contended by learned counsel for the respondent/defendant that such a suit for mandatory injunction filed under Section 39 of the Specific Relief Act, seeking delivery of possession was not maintainable. For the said purposes, learned counsel for the respondent/defendant has placed his reliance in the case of Anthula Sudhakar v. P. Buchi Reddy (dead) by L.Rs. and others (2008) 4 SCC 594 , more particularly paragraph 13 of the said report. It is contended that a suit for mandatory injunction would not be maintainable in view of the fact that possession is required to be obtained by the appellants/plaintiffs for which a suit under Section 5 of the Specific Relief Act is required to be filed. It is contended that the ad valorem Court Fees on the value of the land of which possession is sought is required to be paid in terms of the provisions of Section 7 of the Court Fees Act and then only the claim can be made in that respect. The possession of the land is sought by the appellants/plaintiffs by mere a suit under Section 39 of the Specific Relief Act, which according to learned counsel for the respondent/defendant is not maintainable. 13. We have considered the aforesaid submissions thoroughly. What are the circumstances in which a suit for mandatory injunction for delivery of possession is not maintainable, is required to be examined by us. In the case of Anthula Sudhakar (supra), the Apex Court was dealing with some what different situation. There was no statutory obligation on the respondent/defendant to restore back the possession of the appellants/plaintiffs. The suit was filed on the basis of title and it was stated that while the appellants/plaintiffs were taking steps for making certain construction, the respondent/defendant in the said suit interfered with the said work and, therefore, an injunction was sought. There was no statutory obligation on the respondent/defendant to restore back the possession of the appellants/plaintiffs. The suit was filed on the basis of title and it was stated that while the appellants/plaintiffs were taking steps for making certain construction, the respondent/defendant in the said suit interfered with the said work and, therefore, an injunction was sought. The general principles were laid down by the Apex Court in paragraph 13 on which heavy reliance is placed by learned counsel for the respondent/ defendant and it was stated that if there is a cloud on the title, a simple suit for injunction would not be maintainable. It was a case of grant of mandatory injunction for possession and, therefore, the analogy as laid down by the Apex Court in the said case are not attracted. The facts and circumstances in the present case are totally different, such a reliance placed by learned counsel for the respondent/defendant cannot be accepted. 14. For the purposes of maintainability of the suit, we are required to see the law and to examine whether there was any statutory duty on the respondent/defendant to put the appellants/plaintiffs in possession of the suit land or not. The Specific Relief Act more particularly Part-III of the said Act deals with the injunction. Chapter-VII is for the purposes of preventing relief of temporary and perpetual injunction as prescribed under Sections 36 and 37 of the said Act. Chapter-VIII in the said part, deals with the perpetual injunction and Section 39 deals with mandatory injunction. Since we are required to examine the aspect of said Section 39, the same is reproduced hereunder :- "39. Mandatory injunctions.- When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts." 15. Section 40 of the Specific Relief Act in Chapter-VIII, Part-III deals with damages or in lieu of, or in addition to, injunction and Section 41 of the said Act specifically deals with the provision when injunction can be refused. Section 40 of the Specific Relief Act in Chapter-VIII, Part-III deals with damages or in lieu of, or in addition to, injunction and Section 41 of the said Act specifically deals with the provision when injunction can be refused. None of the contingencies prescribed under Section 41 of the Specific Relief Act, contains a prohibition that a plaintiff who is seeking enforcement of his right accrued on the basis of a statutory contract cannot ask for grant of a mandatory injunction. Section 42 of the Specific Relief Act deals with injunction to perform negative agreements which are not to be enforced. Again nothing is provided in this Section also to prohibit grant of injunction to discharge the statutory the duties. This makes it clear that a mandatory injunction can be issued to prevent the breach of an obligation or to compel the performance of certain acts which the Court can direct, non-compliance of which is complaint to the Court. In some what similar circumstances, the Apex Court in the case of Sant Lal Jain v. Avtar Singh, AIR 1985 SC 857 has held that in certain circumstances even the mandatory injunction can be issued for delivery of possession of the land. The Apex Court has further considered the aspect of grant of decree of mandatory injunction under Section 39 of the Specific Relief Act, 1963 and has specifically dealt with the provisions of Section 36 to 42 of the aforesaid Act while looking to a claim for modification of decree of injunction granted by the Court. In the case of State of Haryana v. State of Punjab and another, (2004) 12 SCC 673 , in paragraphs 36 onwards the reasons are specifically recorded as to under what circumstances a claim for grant of mandatory injunction can be made. It is categorically held by the Apex Court that unless the plaintiff establishes that there is such a right in law, there would be no question of Court deciding any dispute regarding the extent or existence of such right. Whether the mandatory injunction is granted as a final relief or it is in the nature of a protection till adjudication of the claim, has to be taken note of. Whether the mandatory injunction is granted as a final relief or it is in the nature of a protection till adjudication of the claim, has to be taken note of. Once the command is issued by the Court by granting a mandatory injunction under Section 39 of the Specific Relief Act for compliance of the statutory provisions or the liability, that has to be treated as a final decree executable in law. The Apex Court has considered various decisions of the other Courts including the Courts of the other countries and has categorically reached to the conclusion that there is distinction between a final peremptory injunction and a final decree, which requires a continuous course of action. It will be a different case where only a preventive injunction is asked for. The simple meaning of the aforesaid is that the Court has power to grant a mandatory injunction for discharge of statutory liability and for that purpose it is not necessary that an ordinary suit under Section 5 of the Specific Relief Act for grant of a decree of possession be filed. We say so because it will be harsh to a plaintiff to ask for possession of the land, which has been leased out to him only in an ordinary suit under Section 5 of the Specific Relief Act, on payment of ad volerum Court fees to the tune of the value of the land, even when there is statutory liability cast on the lessor to put the aforesaid plaintiff in possession of the land leased to him. As has been explained by the Apex Court, if an obligation is on the lessor to put the lessee in possession of the land and the lessor is not performing the said Act nor is discharging his obligation, a mandatory injunction can be issued to perform such act by the Court. However, while dealing with such a situation, as a caution is sounded by the Apex Court, the Courts are required to look into pleadings of the parties, examine the records and documents, consider the law and then only issue such an injunction. To us, this being a bounden duty of the Court while dealing with a claim for grant of mandatory injunction for the said purposes, the trial Courts are to act more cautiously and not in casual manner. To us, this being a bounden duty of the Court while dealing with a claim for grant of mandatory injunction for the said purposes, the trial Courts are to act more cautiously and not in casual manner. We say so, because, but for the aforesaid reasons, normally a suit for possession is not to be filed under Section 39 of the Specific Relief Act, on the other hand, a regular Civil Suit in terms of the provisions of Section 5 of the aforesaid Act is required to be filed in the manner provided by the Code of Civil Procedure. 16. This takes us to examine whether there was any statutory duty cast on the respondent Municipal Corporation to put the appellants/plaintiffs in possession of the land in suit and for that purposes, a suit of mandatory injunction could be filed by the appellants/plaintiffs. The leases are to be granted by the Municipal Corporation in terms of the provisions of M.P. Municipal Corporation Act, 1956 (hereinafter referred to as the Act for short). Chapter-VI of the aforesaid Act, deals with the municipal property and liabilities. Section 80 of the said Act prescribes the provisions governing the disposal of municipal property or property vesting in or under the management of Corporation. Since this particular law is required to be tested exhaustively, the provisions of Section 80 of the Act aforesaid are reproduced hereunder :- "80. Provisions governing the disposal of municipal property or property vesting in or under the management of Corporation.-(1) No streets, lands, public places, drains or irrigation channels shall be sold, leased or otherwise alienated, save in accordance with such rules, as may be made in this behalf. (2) Subject to the provisions of sub-section (1) - (a) the Commissioner may, in his discretion, grant a lease of any immovable property belonging to the Corporation, including any right of fishing or of gathering and taking fruit, flowers and the like, of which the premium or rent, or both, as the case may be, does not exceed five hundred rupees for any period not exceeding twelve months at a time. Provided that every such lease granted by the Commissioner, other than the lease of the class in respect of which Mayor-in-Council has by resolution exempted the Commissioner from compliance with the requirements of this proviso, shall be reported by him to the Mayor-in-Council within 15 days after the same has been granted; (b) with the sanction of the Mayor-in-Council, the Commissioner may be sale or otherwise grant a lease of immovable property including any such right as aforesaid, for any period not exceeding three years at a time of which the premium or rent or both, as the case may be, for any one year does not exceed three thousand rupees; (c) with the sanction of the Corporation the Commissioner may lease, sell or otherwise convey any immovable property belonging to the Corporation. (3) The Commissioner may - (a) in his discretion dispose of by sale, letting out on hire or otherwise, any movable property belonging to the Corporation not exceeding five hundred rupees in value; (b) with the sanction of Mayor-in-Council, dispose of by sale, letting out on hire, or otherwise any movable property belonging to the Corporation not exceeding five thousand rupees in value; (c) with the sanction of the Corporation, sell, let out on hire or otherwise convey any movable property belonging to the Corporation. (4) The sanction of the Mayor-in-Council or of the Corporation under sub-section (2) or subsection (3) may be given either generally for any class of cases or specifically in any particular case. (5) The foregoing provisions of this section shall apply to every disposal of property belonging to the Corporation made under or for the purpose of this Act; Provided that - (i) no property vesting in the Corporation in trust shall be leased, sold or otherwise conveyed in a manner that is likely to pre judicially affect the purpose of the trust subject to which such property is held; (ii) no land [value of which may be prescribed] shall be sold or otherwise conveyed without the previous sanction of the Government and every sale, or other conveyance of property vesting in the Corporation shall be deemed to be subject to the conditions and limitations imposed by this Act or by any other enactment for the time being in force." 17. A perusal of Section (2) of Section 80 of the Act, makes it clear that till the Rules are made by the competent authority, powers can be exercised by the Commissioner of the Municipal Corporation to lease the property to some extent. Sub-clause (c) of Sub-section (2) of Section 80 of the Act prescribes that with the sanction of the Corporation, the Commissioner may lease, sell or otherwise convey any immovable property belonging to the Corporation. The transfer of immovable property of the Municipal Corporation was not governed by any Rules as the Rules for the first time were made by the State Government in the year 1970, which are known as M.P. Municipal Corporation (Transfer of Immovable Property) Rules, 1994 (hereinafter referred to as 1994 Rules for short). Prior to coming into force of these Rules, the properties belonging to the Municipal Corporation could be leased out in the manner indicated in Sub-section (2) of Section 80 of the aforesaid Act. Precisely, this was the power which was exercised by the Municipal Corporation in executing the lease deed in favour of the appellant/plaintiff No.2 Jabalpur Club on 19.12.1989 i.e. much before coming into force of 1994 Rules. 18. It is the submission of learned Senior counsel for the appellants/plaintiffs that renewal of any lease is in fact a fresh grant. There cannot be any dispute to that extent as the law in that respect has already been settled by the Apex Court in the case of Delhi Development Authority v. Durga Chand Kaushish, AIR 1973 SC 2609 . If the fresh grant was also made prior to coming into force of 1994 Rules, the same cannot be said to be violative of any provisions of the Act. The Transfer of Property Act deals with the lease of immovable property as is contained in Chapter-V. The leases are defined in Section 105 of the aforesaid Act, which means that a lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, expressed or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms. Rights and liabilities of lessor and lessee are prescribed under Section 108 of the Transfer of Property Act, which are required to be examined exhaustively and, therefore, the entire provision is quoted herein below :- "108. Rights and liabilities of lessor and lessee.- In the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased:- (A) Rights and Liabilities of the Lessor (a) The lessor is bound to disclose to the lessee any material defect in the property, with reference to its intended use, of which the former is and the latter is not aware, and which the latter could not with ordinary care discover; (b) the lessor is bound on the lessees request to put him in possession of the property; (c) the lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and performs the contracts binding on the lessee, he may hold the property during the time limited by the lease without interruption. The benefit of such contract shall be annexed to and go with the lessees interest as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested. The benefit of such contract shall be annexed to and go with the lessees interest as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested. (B) Rights and Liabilities of the Lessee (d) If during the continuance of the lease any accession is made to the property, such accession (subject to the law relating to alluvion for the time being in force) shall be deemed to be comprised in the lease; (e) if by fire, tempest or flood, or violence of an army or of a mob, or other irresistible force, any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lease shall, at the option of the lessee, be void: Provided that, if the injury be occasioned by the wrongful act or default of the lessee, he shall not be entitled to avail himself of the benefit of this provision; (f) if the lessor neglects to make, within a reasonable time after notice, any repairs which he is bound to make to the property, the lessee may make the same himself, and deduct the expense of such repairs with interest from the rent, or otherwise recover it from the lessor; (g) if the lessor neglects to make any payment which he is bound to make, and which, if not made by him, is recoverable from the lessee or against the property, the lessee may make such payment himself, and deduct it with interest from the rent, or otherwise recover it from the lessor; (h) the lessee may even after the determination of the lease remove, at any time whilst he is in possession of the property leased but not afterwards all things which he has attached to the earth; provided he leaves the property in the state in which he received it; (i) when a lease of uncertain duration determines by any means except the fault of the lessee, he or his legal representative is entitled to all the crops planted or sown by the lessee and growing upon the property when the lease determines, and to free ingress and egress to gather and carry them; (j) the lessee may transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the property, and any transferee of such interest or part may again transfer it. The lessee shall not, by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease; Nothing in this clause shall be deemed to authorise a tenant having an un-transferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee; (k) the lessee is bound to disclose to the lessor any fact as to the nature or extent of the interest which the lessee is about to take, of which the lessee is, and the lessor is not, aware, and which materially increases the value of such interest; (l) the lessee is bound to pay or tender, at the proper time and place, the premium or rent to the lessor or his agent in this behalf; (m) the lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as it was in at the time when he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force, and to allow the lessor and his agents, at all reasonable times during the term, to enter upon the property and inspect the condition thereof and give or leave notice of any defect in such condition; and, when such defect has been caused by any act or default on the part of the lessee, his servants or agents, he is bound to make it good within three months after such notice has been given or left; (n) if the lessee becomes aware of any proceeding to recover the property or any part thereof, or of any encroachment made upon, or any interference with, the lessors rights concerning such property, he is bound to give, with reasonable diligence, notice thereof to the lessor; (o) the lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased, or fell 1[or sell] timber, pull down or damage buildings 1[belonging to the lessor, or] work mines or quarries not open when the lease was granted, or commit any other act which is destructive or permanently injurious thereto; (p) he must not, without the lessors consent, erect on the property any permanent structure, except for agricultural purposes; (q) on the determination of the lease, the lessee is bound to put the lessor into possession of the property." 19. The first part of the right and liability of the lessor deals with three contingencies, namely, the lessor is bound to disclose any material defect in the property to the lessee and the lessor is bound on the lessee request to put him in possession of the property. Likewise, the lessee is also responsible to deliver back the possession of the property to the lessor on the determination of the lease. In either case, when the lease is executed though the property was not in possession of the lessor, it would be the responsibility of the lessor to get the property vacated and deliver its possession to the lessee. Likewise, the lessee is also liable to deliver back the possession to the lessor the moment the lease is determined. On a perusal of the lease deed and the documents which have been placed on record by the appellants/plaintiffs, it is clear that on the date the renewal of the lease was ordered, the respondent Municipal Corporation was not in possession of the land so leased to the appellants/plaintiffs. It is also born from the record and the evidence adduced by the parties that the land was subsequently got vacated by the Municipal Corporation in the year 1999. That being so, for the purposes of enforcement of statutory liability prescribed under Section 108 of the Transfer of Property Act, lessor was required to put the appellants/plaintiffs in possession of the leased land. For the said purposes, in the considered opinion of this Court, a suit under Section 39 of the Specific Relief Act for grant of mandatory injunction would be maintainable as it is a statutory liability which the respondent-defendant was required to discharge, and for which a mandatory injunction can be issued. 20. It is contended by learned counsel for the respondent/ defendant that there was determination of the lease in terms of provisions of Section 111 of the Transfer of Property Act. Alternatively, it is contended that there was an implied surrender of the lease by the appellants/ plaintiffs and, therefore, the suit for grant of mandatory injunction was not maintainable. We are unable to accept such a submission of learned counsel for the respondent/ defendant. The fact that the land was not in possession of the Municipal Corporation right from the year 1926, was well within the knowledge of the Municipal Corporation. We are unable to accept such a submission of learned counsel for the respondent/ defendant. The fact that the land was not in possession of the Municipal Corporation right from the year 1926, was well within the knowledge of the Municipal Corporation. The said Corporation was also knowing that the initial lease granted in the year 1926 had expired in the year 1956 and then thereafter there was no renewal whatsoever in favour of the appellant No. 2-plaintiff Jabalpur Club. There was no action taken by the respondent Municipal Corporation to take the possession of the suit land from the appellants/plaintiffs after the expiry of the said period. On their own, it was stated in the letter issued to the appellants/plaintiffs that the land was being enjoyed by the appellants/plaintiffs though there was no continuity of the lease. From these documentary evidence, by no stretch of imagination, could it be said that the appellants/plaintiffs have surrendered the lease or possession of the suit land to the respondent/defendant or there was any implied surrender as is envisaged under Section 111 of Transfer of Property Act. To claim such a benefit, at least the documentary evidence to the effect that such a demand was made and then thereafter possession was taken by the respondent/defendant, was required to be produced before the trial Court. Not a single document to that effect was filed precisely because none was available. Even there is no determination of the lease or any intention shown in that respect. Only a threat is given that in case reply is not filed, such an order would be passed, but at least till the date of suit, there was no determination of lease by the respondent Municipal Corporation. The situation as have been enumerated in Section 111 of the Transfer of Property Act, which amounts to determination of lease are thus not achieved as the respondent Municipal Corporation itself has regularised the period of lease which was already lapsed, by grant of lease on 19.12.1989. Therefore, the provisions of Section 111 of the Transfer of Property Act, would not come to the rescue of the respondent/defendant. 21. Therefore, the provisions of Section 111 of the Transfer of Property Act, would not come to the rescue of the respondent/defendant. 21. On the aforesaid analogy and discussions, we have to hold that the suit for grant of mandatory injunction was rightly filed by the appellants/plaintiffs and the same was maintainable for grant of possession of the leased land to the appellants/plaintiffs by the respondent Municipal Corporation in performance of the statutory liability prescribed under Section 108 of the Transfer of Property Act read with Section 80 of the Municipal Corporation Act. 22. Having dealt with such a preliminary objection, now we have to proceed further to examine whether the trial Court has rightly considered the material evidence available on record and has decided the issues in appropriate manner or not ? 23. For the purposes of convenience, we have already reproduced the issues in paragraph 5 of this judgment. We have examined that Issue No. 1 was decided in favour of the appellants/plaintiffs and against the respondent/defendant. No cross appeal or objection has been filed before this Court and such finding and decree has been accepted by the respondent/defendant. Rightly it has been done so because the lease agreement was executed by the respondent/defendant. So far as the Issue No.1-B is concerned, no finding in that respect was required to be given for the simple reason that the consequence of grant of renewal of the lease is only that the lessee is to enjoy the grant till its expiration. So far as the Issue No.2 is concerned, finding was neither against the appellants/ plaintiffs nor in favour of respondent/defendant. It was an admitted position that in the year 1999, the respondent Municipal Corporation has taken in possession the land so leased to the appellants/plaintiffs, after removing the encroachment from the said land. In fact, the Issue No.2-B should have been decided appropriately and this is the only finding which the appellants/plaintiffs have challenged before this Court. The Issue No.3 was decided in favour of the appellants/plaintiffs as no breach of lease conditions were found by the trial Court. The findings in that respect have not been called in question before us by the respondent/defendant. Virtually, the trial Court has not recorded any finding in respect of Issue No. 3. The Issue No.3 was decided in favour of the appellants/plaintiffs as no breach of lease conditions were found by the trial Court. The findings in that respect have not been called in question before us by the respondent/defendant. Virtually, the trial Court has not recorded any finding in respect of Issue No. 3. Now whatever the circumstances, we have to examine the findings recorded by the trial Court in paragraphs 14, 15, 16 and 17 of the impugned Judgment. 24. A perusal of the evidence indicates that the appellants/plaintiffs had written to the competent authority of the respondent Municipal Corporation and to the district Administration for removal of the encroachment from the land. This fact was categorically stated by the appellants/ plaintiffs in its reply to the show cause notice issued to the appellant No. 2/plaintiff, which has been placed on record as Ex.P/7. Along with the said reply, the letter written to the competent authorities of the Electricity Board, letter written to the Station House Officer, letter written to the other authorities of the State are also produced. No finding was recorded in that respect by the trial Court whether these actions of the appellants/plaintiffs were to be treated as sufficient for taking steps for getting the encroachment removed from the land leased to the appellants/plaintiffs or not. Further, the admitted position which was recorded in the proceedings written by the respondent-defendant Corporation authorities and duly exhibited and proved vide Ex.P/40, indicates that in fact Corporation authorities themselves have agreed that they will get the land vacated from the encroachers. In fact, it was recorded that the lessee, the appellants/plaintiffs before the trial Court was coordinating in the said proceedings. Whatever the circumstances, this fact was well within the knowledge of the respondent/defendant that the land sought to be leased out to the appellants/plaintiffs was not readily available to deliver possession of the same to the appellants/plaintiffs as it was encroached by some outsiders. If that was the situation, the respondent/defendant Municipal authorities could have said that there was no possibility of renewal of the lease and the entire matter was to be closed at that stage. On the other hand, the corporation authorities extended the period of the lease knowing fully well that they were not in possession of the land, with certain conditions to make construction over the land so leased to the appellants/ plaintiffs. On the other hand, the corporation authorities extended the period of the lease knowing fully well that they were not in possession of the land, with certain conditions to make construction over the land so leased to the appellants/ plaintiffs. In Clause (c) of the conditions mentioned in paragraph 4, it was recorded thus :- "(c) In case of land not built upon, the lessee shall commence to build within one year from the date of commencement of the lease of the said land and shall within two years from the date erect or/and complete on the said land dwelling use/or accommodation for business purpose (out building according to the conditions mentioned thereafter and design to be approved by the lessor or by such person as he may appoint for the purpose and shall not without the previous consent in writing of the lessor or of such person make/alteration in the land, any projection of or structure overhanging upon any land out-side the said land hereby demised)." 25. The appellants/plaintiffs thereafter prepared a map for construction placed the same for grant of sanction before the respondent Corporation authorities which document has been produced in evidence as Ex.P/10. After grant of the sanction when the commencement of the construction could not take place, the period of completion of construction was extended by the Corporation authorities themselves. Mainly this was done only because the land so leased to the appellants/plaintiffs was not put in possession of the appellants/plaintiffs and, therefore, it was not possible for the appellants/plaintiffs to start the construction work. In these circumstances, the findings recorded by the trial Court against the appellants/plaintiffs cannot be sustained. For a long period, in case the lessee is not put in possession, he cannot be denied the benefits. There was no delay on the part of the appellants/plaintiffs in approaching the Court as after making request when the land was not put in possession of the appellant and a threat was given to the appellants/plaintiffs to cancel the lease, the suit was filed on 22.4.2003 before the Court. Thus, in fact the evidence to this extent available on record was not appreciated by the trial Court in appropriate manner and a perverse finding was recorded. Thus, in fact the evidence to this extent available on record was not appreciated by the trial Court in appropriate manner and a perverse finding was recorded. From the statements of defendant, it is clear that till the year 1998, when the inspection was done by the Commissioner of Municipal Corporation though the fact was well within the knowledge of the authorities of the Municipal Corporation that unauthorised encroachment has been made on the land, action was not taken for removal of those unauthorised occupant from the leased land. For such lapses on the part of the Municipal Corporation authorities, the appellants/ plaintiffs were not to be blamed and the relief was not to be denied to them. 26. The denial of the decree to the appellants/plaintiffs by the Trial Court was only on the ground of delay in approaching the Courts of law as the finding is recorded that the suit was filed after a delay of about 14 years. To us, such a finding recorded by the Trial Court is perverse, for the simple reason that the evidence adduced by the parties indicate that the appellants/plaintiffs were pointing out that the land was encroached by someone else and was not in possession of the appellants. No action whatsoever was taken by the Municipal Corporation, the respondent/defendant, to take back possession of the land from the appellants even when the lease period had expired in the year 1956 for a considerable long time. The agreement was reached between the appellants and the officials of the Municipal Corporation in the year 1988-89 and ultimately the renewal of the lease was done on 19.12.1989 with an understanding that the removal of the unauthorized encroachment would be done by the Municipal Corporation and if any litigation is brought in that respect before the Court of law, the appellants would stand along with the Municipal Corporation to defend the said claim. Further, ultimately the unauthorized encroachers were removed in the year 1999 and thereafter the land was taken in possession by the respondent/defendant. The demand was thereafter made by the appellants for putting the appellants, more particularly appellant No. 2, in possession of the land, which was not considered to in terms of the provisions of Section 108 of the Transfer of Property Act and, therefore, the suit was required to be filed. The demand was thereafter made by the appellants for putting the appellants, more particularly appellant No. 2, in possession of the land, which was not considered to in terms of the provisions of Section 108 of the Transfer of Property Act and, therefore, the suit was required to be filed. This explanation itself given in the plaint as also adduced in evidence before the Trial Court was enough to hold that there was no unexplained delay caused in approaching the Court of law for grant of mandatory injunction. Thus, the finding recorded by the Court below in aforesaid paragraphs 14, 15, 16 and 17 of the impugned judgment are perverse and cannot be given a stamp of approval by this Court. Further fact is found proved from the evidence of the said DW/2 that right from 1988, every time deposit was being made by the appellants/plaintiffs towards premium of the leased land and the said amount was accepted by the Municipal Corporation without any demur. Deposit of that amount was also proved by the evidence adduced by the appellants/plaintiffs and several receipts in that receipts were produced and exhibited. If the lessor was accepting the premium of the land, it was the responsibility of the lessor to put the lessee in possession of the land, for the consideration paid, so that the lessee may enjoy the property obtained on lease. In view of this, the findings recorded by the trial Court in this respect cannot be upheld. 27. Learned counsel for the respondent/defendant has vehemently contended that the entire suit was founded on an unregistered document of lease, which was inadmissible in evidence as the registration of such document was necessary under Section 17 of the Registration Act. It is contended that such a document though was relied by the appellants/plaintiffs was neither registered nor impounded and the consequence of such was as prescribed under Section 49 of the Registration Act, therefore, even for this reason, the relief was not available to the appellants/plaintiffs as claimed in the suit founded on an unregistered document and the suit was liable to be dismissed on this count alone. For the purpose of aforesaid, learned counsel for the respondent/defendant has placed his reliance in the case of R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami and V.P. Temple and another and would contend that since such an objection can be taken at any stage even in the appellate Court and if make out such a suit is to be treated as dismissed. It is contended that relying on the said decision in the case of R.V.E. Venkatachala Gounder (supra), further the law has been laid down by the Apex Court in the case of Smt. Dayamathi Bai v. K.M. Shaffi. We have given our considered thought to the aforesaid submissions of learned counsel for the respondent/defendant and we have reasons to reject the same. First of all, the document was not made the basis for grant of any such relief of possession. It was shown for the purposes of pointing out the liability on the lessor, the respondent-Municipal Corporation in terms of the provisions of Section 108 of the Transfer of Property Act. Secondly, though the said document was said to be denied by the respondent/defendant, but their own action was based only on the said document as all notices were issued by the respondent-Municipal Corporation to the appellants/plaintiffs alleging breach of the said lease deed. Further, the lease deed was a statutory one and, therefore, merely because the same was not registered, a right accrued under the said lease deed that too a statutory right was not to be denied to the appellants/plaintiffs. The facts and circumstances in the case of R.V.E. Venkatachala Gounder (supra) and Smt. Dayamathi Bai (supra), are distinguishable. In the case of R.V.E. Venkatachala Gounder (supra), a private contract was in between the parties and there were certain private documents relating to the title. The Apex Court while considering the said documents, reached to the conclusion that unregistered documents were of no consequence as Section 49 of the Registration Act prohibit admission of such documents in evidence. The similar distinguishable features were also available in the case of Smt. Dayamathi Bai (supra), which facts were considered in relation to a certified copy of the documents in absence of the proof of execution of the said document. The similar distinguishable features were also available in the case of Smt. Dayamathi Bai (supra), which facts were considered in relation to a certified copy of the documents in absence of the proof of execution of the said document. Factual aspect that such a lease deed was executed in favour of the appellants/plaintiffs was in fact admitted by DW/2, who himself has proved the said document of lease dated 19.12.1989. If execution of such a document for the purposes of granting lease was admitted in evidence, by the witnesses of the respondent/defendant, at this stage, such an objection raised regarding admissibility of the document is not to be entertained. The respondent would not be benefited by the decisions of the Apex Court relied by the learned counsel for the respondent/defendant in view of the aforesaid distinguishable features. 28. The objection raised by learned counsel for the respondent/defendant in respect of waiver of rights by the appellants/plaintiffs in the matter of claim of possession and the reliance placed by learned counsel for respondent/ defendant in the case of Vithalbhai (P) Ltd. v. Union Bank of India and Tarachand v. Sagarbai alias Chaiyalibai are wholly misconceived. We have already discussed the provisions of Section 111 of the Transfer of Property Act and further actions to be taken in that respect and we have already given our finding that such a submission of learned counsel for the respondent/defendant is not acceptable. Therefore, we have to say that such reliance by the learned counsel for the respondent/defendant is misconceived. In the facts and circumstances, as have been recorded herein above, the law laid down by the Apex Court would not be attracted in the present case as neither there is any implied surrender of the land nor waiver of rights by the lessee in respect of possession of the land demised to the appellants/plaintiffs under the lease. 29. In view of the aforesaid analysis, we allow the appeal. The judgment and decree in so far as it relates to refusal of grant of decree of mandatory injunction directing respondent/defendant to put the appellant/plaintiff No. 2 in possession of the leased land is set aside. The suit of the appellants/plaintiffs is decreed to that extent. However, in peculiar facts and circumstances of the case, parties to the appeal shall bear their own cost of the proceedings. 30. A decree be drawn accordingly.