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2016 DIGILAW 2106 (ALL)

Ved Prakash v. Kanhaiya Lal

2016-05-30

PRAMOD KUMAR SRIVASTAVA

body2016
JUDGMENT Pramod Kumar Srivastava, J. – Heard counsel for the parties on point of admission of second appeal and perused the record. 2. Admittedly, the plaintiff (present respondent) was tenant of shop at disputed place. It is also admitted fact that said shop was in dilapidated condition, therefore, parties had executed a deed dated 29.4.2001 wherein it was agreed between them that plaintiff will handover possession of shop to defendant-landlord (present respondent) and also Rs. 30,000/- from which defendant will re-construct the shop and hand it over to plaintiff after construction. It was also agreed between them that if any further amount will be needed for reconstruction of the shop, the same will be paid by plaintiff to defendants. It is also admitted that after construction of major portion of the disputed shop only shutter was not fixed by defendant-landlord for long period and notice was given by defendant-plaintiff terminating his rights because of non payment of additional demand of money for completing construction of the shop. Then plaintiff filed suit for recovery of possession of that shop. 3. Trial court had dismissed the original suit by its judgment dated 13.8.2013. Against the said judgment, Civil Appeal No. 32 of 2013 was preferred which was allowed by judgment dated 28.1.2016 of Additional District Judge/Special Judge (PC) Act, Court No. 5, Gorakhpur with finding that notice sent by defendant landlord to plaintiff regarding termination of tenancy was in fact sent after completion of construction of the shop in question. Therefore, it was erroneous and incorrect notice, and the plaintiff is entitled to recover possession of the shop in question. Accordingly, first appellate court allowed the appeal and decreed the suit for relief sought in plant. 4. Against the judgment of first appellate court, present second appeal has been preferred. 5. It is pertinent to mention that in original suit, defendant appellant had taken factual ground for denying and opposing the plaint case. Accordingly, first appellate court allowed the appeal and decreed the suit for relief sought in plant. 4. Against the judgment of first appellate court, present second appeal has been preferred. 5. It is pertinent to mention that in original suit, defendant appellant had taken factual ground for denying and opposing the plaint case. Non concurrent judgment of two courts below are based on finding of facts, but in second appeal only point raised by counsel for appellant was that the basis of claim of the original suit was unregistered agreement/lease deed dated 29.4.2001 which is in nature of permanent lease, but since law requires mandatory registration of said deed for being admissible in evidence, therefore, basis of suit in original suit is unregistered deed was inadmissible and judgment of lower appellate court based on such inadmissible evidence is apparently erroneous and perverse. 6. Counsel for respondent contended that such grounds, as being argued in this matter, was not taken by defendant-appellant in written statement or in memo of first appeal. He contended that in Rule 2 Order 41 such new grounds cannot be directly taken in appeal, therefore, on factual grounds, this appeal cannot be admitted and is liable to be dismissed. Order 41, Rule 2 CPC reads as under: "The appellant shall not, except by leave of the court, urge or be heard in support of any ground of objection not set forth in the memorandum of appeal; but the Appellate Court, in deciding the appeal, shall not be confined to the grounds of objection set forth in the memorandum of appeal or taken by leave of the court under this rule: Provided that the court shall not rest its decision on any other ground unless the party who may be affected thereby has had a sufficient opportunity of contesting the case on that ground." 7. It is admitted legal position that without permission of the court appellant cannot urge, argue or be heard in support of any ground of objection or defence unless such grounds are not set-forth in memo of appeal. It is also admitted that in memo of first appeal such grounds of non registration of lease deed in question was not taken. 8. But this point raised before the court in second appeal directly is not such which could be ignored or rejected outright. It is also admitted that in memo of first appeal such grounds of non registration of lease deed in question was not taken. 8. But this point raised before the court in second appeal directly is not such which could be ignored or rejected outright. Section 17 (1) (d) of the Registration Act, 1908 provides that lease deed of immovable property from year to year or for any term exceeding one year or reserving yearly rent must not be registered. It is legal position that those documents which are mandatorily required to be registered cannot be said to be admissible in evidence unless they are registered. In present matter the lease deed dated 29.4.2001 has been the basis of rights of plaintiff-respondent and creates least of immovable property for more than a year ( because half of the monthly rent of Rs. 300/- per year had to be adjusted in future payment of rent), therefore for accepting and admitting in evidence it should have been registered. 9. Apparently it appears that if point of registration is ignored then there is factual finding of lower appellate court which should not be interfered in second appeal. But this legal point is not such that should be ignored. The provision of Rule 2 Order 41 read with order 42 CPC provides that appellate court in deciding the appeal shall not be confined ground of objection set forth in memo of appeal or taking of leave of the court. Since this court find it proper to take this ground of decision, therefore, this appeal is admitted. Following substantial question of law is framed. "Whether basis of original suit, namely the unregistered tenancy/lease deed dated 29.4.2001, was inadmissible evidence and the judgment of the first appellate court relying on it is erroneous and perverse, if so, its effect?" 10. It is a legal point and other factual points are either proved or admitted between the parties. Therefore, there is no need to summon the original record. However, if parties thinks any document is necessary, then they may file certified copy of the same, after permission of this court. 11. List for final hearing on 14.7.2016 in the additional cause list. Appeal Admitted.