1. This is defendant's revision against the judgment and decree dated 05.02.2016 passed by the Additional District Judge, Court No.18, Meerut in SCC Suit No. 10 of 2013 (hereinafter referred to as the suit) by which the plaintiff's suit for possession after eviction of the defendant and for payment of arrears of rent and damages has been decreed.
2. The suit was instituted, inter alia, for possession; recovery of arrears of rent for the period up to 30.12.2012; and for damages at the rate of Rs. 150/- per day with effect from 31.12.2012 up to the date of delivery of possession by the plaintiff-respondent against defendant-revisionist alleging that the plaintiff was exclusive owner-landlord of the shop in dispute of which the defendant was a tenant on rent of Rs. 2,500/- per month, inclusive of water tax and house tax. It was pleaded that the tenancy was a month to month tenancy commencing from the first day of the month and terminating on the last day of the month and as the rent was higher than Rs. 2,000/- per month, the provisions of U.P. Act No. 13 of 1972 were not applicable. It was pleaded that the defendant-revisionist had paid rent only up to the month of January, 2009 and, thereafter, the rent was not paid despite repeated demand. It was pleaded that by a composite notice dated 29.11.2012 of demand as well as termination of tenancy, under Section 106 of Transfer of Property Act, which was served on the defendant on 30.11.2012, the tenancy was terminated with effect from 30.12.2012 and, thereafter, the defendant was liable to pay damages with effect from 31.12.2012 at the rate of Rs. 150/- per day. It was pleaded that upon receipt of notice, the defendant sent a wrong reply dated 17.12.2012 which was replied by notice dated 24.01.2013.
3. The defendant contested the suit by filing written statement claiming that the plaintiff was not the exclusive owner/landlord of the premises in dispute. The owners were Sabbir Ahmad (father of the plaintiff), Irshad Ahmad and Amir Ahmad and that the defendant was a tenant on their behalf on rent of Rs.2500/- p.m. inclusive of taxes. It was admitted that the tenancy was a month to month tenancy, commencing from the first day of the English calender month and ending on the last day of the month. It was claimed that the defendant had paid rent up to March, 2013 to the co-owner Irshad Ahmad, who had also issued receipt to the defendant. It was claimed that the plaintiff alone had no right to terminate the tenancy and as such the notice terminating tenancy was invalid.
4. In the additional pleas, it was stated that Sabbir Ahmad, Amir Ahmad and Irshad Ahmad had jointly let out the shop to the defendant initially on rent of Rs. 1,300/- per month and it was agreed that Rs. 100/- per month would be payable towards house tax and water tax. It was claimed that all the joint owners had agreed that the rent of the premises be paid to Saleem (the plaintiff) and on the basis of such agreement, the rent up to the month of January, 2009 was paid by the defendant to the plaintiff. Thereafter, the rent was agreed to be paid at the rate of Rs.2500/- p.m. and it was also agreed between the co-owners that the defendant would pay rent to co-owner Irshad Ahmad, as a result the defendant had since been paying rent to Irshad Ahmad. In the additional pleas, it was also stated that the shop in dispute was taken by the defendant and Sandeep Kumar jointly and, therefore, the suit was bad for non-joinder of Sandeep Kumar who was a necessary party. It was claimed that when the shop was taken on rent, Sabbir Ahmad, the father of the plaintiff, was alive though, later, he died on 28.05.2012, and, on his death, the plaintiff (Saleem) and his brother (Nasir) became owners in respect of his share. Likewise, the other co-owner Amir Ahmad died and, on his death, his sons Akhlakh, Sartaz, Shahid and Iqbal became co-owners. In the meantime, Iqbal also died, and, on his death, his wife Sanjida and sons Rashid, Sajid, Khalid, Abid, Zahid and Haroon became co-owners, who, all nominated Irshad Ahmad to receive rent of the accommodation in dispute. It was thus claimed that the suit was bad for non-joinder of the remaining co-owners. It was also claimed that there was a dispute between the plaintiff and his brother Nasir in connection with which Original Suit No. 26 of 2012 was instituted which was pending.
5. On the pleadings of the parties, the trial court framed as many as seven points for consideration:
(i) Whether there was a landlord-tenant relationship between the plaintiff and defendant?
(ii) Whether the defendant had been a defaulter in payment of rent for which he is liable to be evicted?
(iii) Whether the notice terminating tenancy was valid and was duly served on the defendant?
(iv) Whether U.P. Act No.13 of 1972 is applicable on the premises?
(v) Whether plaintiff had denied title of the landlord and the landlord had not condoned the said conduct?
(vi) Whether the suit is bad for non-joinder of necessary party?
(vii) To what relief the plaintiff is entitled to?
6. The court below on point no. 1, by placing reliance on paper no. 26 Ga (Annexure No.SA-1 to the Second Supplementary Affidavit), which was a rent agreement entered into between the plaintiff - Saleem Ahmad and the defendant Ashish Kumar along with his father Sandeep Kumar, and the oral evidence led during the course of the trial came to a conclusion that there was landlord-tenant relationship between the plaintiff and the defendant. It is noteworthy that the defendant had admitted his signature on the said rent agreement. The court below further found that Amir Ahmad and Irshad Ahmad who, according to the defendant, were co-owners of the accommodation in dispute along with Sabbir Ahmad (father of the plaintiff), had signed at the margin of the rent agreement by writing that they are bound by the rent agreement. The court below also found that the plaintiff was son of Sabbir Ahmad who died leaving plaintiff and his brother Nasir as his heirs and that a compromise decree had been passed in Original Suit No. 1036 of 2011. The court below further held that it was proved by the rent receipts 65 Ga/1 to 65 Ga/4 that initially the rent was paid from 30.01.2004 up to 30.08.2005 to the plaintiff and that the rent receipts produced by the defendant, showing payment to Irshad, were of the period 2014 onwards and few receipts were of the period starting from July 2012 to January 2013. Accordingly, after consideration of the entire evidence, the court below found that since inception of the tenancy the defendant had paid rent to the plaintiff pursuant to the rent agreement, but from January 2009, without any good reason, he started paying rent to Irshad Ahmad. It held that there was a landlord-tenant relationship between the plaintiff and the defendant.
7. On the question of default, the court below found that there was no evidence to show that from January, 2009, the defendant had paid rent to the plaintiff, accordingly, a finding was returned that from January, 2009, the defendant had been a defaulter in payment of rent. In respect of validity of notice, the court below found that the notice terminating tenancy was valid and its service was never in dispute. With regard to the applicability of U.P. Act No. 13 of 1972, the Court below observed that as admittedly the rent of the premises in question was higher than Rs. 2,000/- per month, the U.P. Act No. 13 of 1972 was not applicable.
8. On point no.5, the court below found that the defendant had produced no reliable evidence to show that Irshad Ahmad was the owner/landlord of the premises in question and since the defendant had denied the title of the landlord and it had been found that there was landlord-tenant relationship between the plaintiff and the defendant, the defendant was liable for eviction also on ground of denial of title.
9. On point no.6, the court below found that the suit was not bad for non-joinder of necessary party inasmuch as Ashish Kumar (the defendant) had admitted in his cross-examination that in the rent receipts he alone was shown as a tenant because he alone was the tenant and not his father. The court below further observed that the rent agreement created a joint tenancy, therefore, the suit, even if instituted against one of the joint tenants, would not be bad for non-joinder of the other joint tenant. After returning findings, as above, the suit was decreed.
10. Sri B.D. Mandhyan, learned senior counsel assisted by Sri Om Prakash, for the revisionist, submitted that the plaintiff was not an exclusive owner/landlord therefore neither the notice terminating tenancy nor the suit was lawful without joining other co-owners and the finding to the contrary returned by the court below by placing reliance on the rent agreement (paper no. 26 Ga) was not legally justified, because clause 8 of the rent agreement suggested that it created tenancy for a period exceeding one year and since it was an unregistered document, the same was not admissible in evidence. Therefore the findings returned by the court below, by placing reliance on the said rent agreement, are vitiated in law. It was submitted in the alternative that if the rent agreement is accepted, then the defendant Ashish Kumar and his father Sandeep Kumar were both tenants in common therefore the suit instituted by impleading Ashish Kumar alone was bad for non-joinder of necessary party and was liable to be dismissed. It was also submitted that mere receiving of rent on behalf of other co-owners would not confer the right of landlord on the plaintiff and the rent agreement, even if accepted, would only confer a right to receive rent by the plaintiff on behalf of other co-owners and, as such, in his individual capacity, the plaintiff neither had right to terminate the tenancy nor to institute the suit without joining the other co-owners. In support of the above submission, the learned counsel for the revisionist placed reliance on decisions of this Court in the cases of Gurdayal Saran Prasad v. District Judge, Dehradun and others: 1997 (2) ARC 535; Board of Basic Education, U.P. Allahabad and another v. VIth Additional District & Sessions Judge, Kanpur Nagar & Ors.: 2007 (3) JCLR 391 (All). He further placed reliance on a decision of a Division Bench of this Court in the case of Zarif Ahmad and another v. Satish Kumar and another : 1983 ARC 422 so as to contend that where the lease agreement is in writing, even if it is for a period of less than a year, it must be registered in view of Section 107 of the Transfer of Property Act and if not so registered, it cannot be read in evidence other than for collateral purposes. Relying on the same judgment, it has been contended that relationship of landlord and tenant, the rate of rent, period for which the original lease had been granted, are not the purposes which can be said to be collateral. A decision of this Court in the case of Syed Ahmad Ali and others v. Shafiq Ahmad: 1991 (2) ARC 90 has also been relied to urge that an unregistered agreement of lease is not admissible in evidence except for collateral purposes. Reliance has also been placed on a decision of this Court in Ram Swarup Jain v. Sri Janki Devi Bhagat Trust : AIR 1974 All 424 so as to contend that document of lease for a period of twelve months or less, must be registered and cannot be received in evidence unless it is registered. Reliance was also placed on a Division Bench decision of this Court in the case of Budh Sen v. Sheel Chandra Agarwal and others : 1977 ARC 384 so as to contend that non-joinder of a co-tenant and institution of suit only against one of the tenants in common is bad in law.
11. Per contra, Sri Utpal Chatterji, learned counsel for the plaintiff-respondent, submitted that the tenancy was evidenced by a rent agreement in which it was specifically provided that the first party Saleem Ahmad son of Shabbir Ahmad, the plaintiff, had got the shops constructed by the name of Chaudhary Market and that the second party had taken the premises on rent from the first party on a rent of Rs. 1,300/- per month and, on the building, the provisions of U.P. Act No. 13 of 1972 were not applicable. In clause 1 of the rent agreement, it was specifically provided that the tenancy was a month to month tenancy beginning from the first day of the month and terminating on the last day of the month and as, by the rent agreement, no tenancy right for a term exceeding one year was created, the rent agreement did not require compulsory registration. He further submitted that it is well settled in law that notice terminating tenancy served on anyone of the joint tenant is good enough to terminate the tenancy and likewise the suit against any one of the joint tenant is not bad for non joinder of necessary party. It has been submitted by him that the decisions which have been relied by the learned counsel for the revisionist that if a lease is in writing, even if it is for a period of less than a year, it would require compulsory registration, do not deal with the U.P. Amendment carried out by U.P. Act No. 57 of 1976, with effect from 01.01.1977, to the second paragraph of section 107 of the Transfer of Property Act. It has been submitted that by U.P. Amendment, the second paragraph, as it occurs in section 107 of the Transfer of Property Act, has been substituted and therefore Section 107 of the Transfer of Property Act, as applicable in the State of Uttar Pradesh, would read as follows:-
Section 107--" 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.
All other leases of immovable property may be made either by a registered instrument or, by an agreement, oral or written, accompanied by delivery of possession (substituted by U.P. Act No. 57 of 1976, section 31, with effect from 01.01.1977)."
12. The second paragraph of section 107 of the Transfer of Property Act, before its substitution by the U.P. Amendment, read as follows:-
"All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession."
13. It has been submitted that the decisions which have been cited by the learned counsel for the applicant do not deal with U.P. Amendment which specifically provided that leases, other than those contemplated by paragraph 1 of section 107 of the Transfer of Property Act, of immovable property may be made either by a registered agreement or by an agreement, oral or written, accompanied by delivery of possession meaning thereby that if a lease of immovable property is not a lease from year to year, or for any term exceeding one year or reserving yearly rent, can be made by a registered instrument, or by an oral agreement, or by a written agreement, accompanied by delivery of possession. It has been submitted that since the term of the lease in question was not for a period exceeding one year and it was a month to month tenancy without reserving yearly rent, the rent agreement did not require compulsory registration under Section 107 of the Transfer of Property Act.
14. Sri Utpal Chatterji further submitted that mere statement in the rent agreement that the rent would be revisable after three years would not mean that the rent agreement confers lease hold rights of a term exceeding one year and above, inasmuch as by the rent agreement, the tenancy was specifically a month to month tenancy, without specifying any fixed term of the tenancy, which was terminable, as would be clear from clause 10 thereof, therefore, the rent agreement did not require compulsory registration in view of Section 107 of the Transfer of Property Act and, as such, it was admissible in evidence and the court below rightly placed reliance on the same.
15. Sri Utpal Chatterji further submitted that so far as the dispute with regard to title is concerned, the same cannot be raised at the instance of the defendant because he was bound by the terms of the agreement in which it was specifically stated that the constructions of the premises were raised by the plaintiff (first party in the agreement) and that the second party had demanded the premises on lease from the first party which was leased by the first party on a month to month tenancy therefore, by virtue of section 116 of the Indian Evidence Act, till the defendant vacated the premises, he was estopped from denying the title of the landlord. It was further submitted that from the rent agreement itself it was clear that the alleged other co-owners had signed on the margin of the agreement stating that they were bound by the terms of the agreement. Meaning thereby that they had accepted the plaintiff to be landlord qua the defendant in respect of the premises in question.
16. Sri Utpal Chaterji pointed out that the non-joinder of the father of the defendant as a defendant in the suit would not have made any material difference inasmuch as the defendant during his cross-examination had admitted that he alone was the tenant and had alone been paying the rent to the landlord and, therefore, only his name was reflected in the rent receipt. It has also been submitted that service of notice on anyone of the joint tenants is sufficient to terminate the tenancy and a suit instituted against anyone of the joint tenants is not bad for non-joinder of the remaining joint tenants. It was submitted that from the rent agreement, it is clear that there was unity of title and possession and a joint tenancy was created and therefore the suit was not bad for non-joinder of necessary party and that the findings returned by the court below are well considered and they do not call for any interference inasmuch as the entire evidence on record has been considered and discussed by the court below. He further submitted that assuming though not admitting that there were other co-owners of the property, neither the notice issued on behalf of a single co-owner nor the suit by any one of the co-owners would be bad in law. In support of his contentions he placed reliance on decision of the apex court in the case of Kasthuri Radhakrishnan & others versus M. Chinniyan & another : (2016) 3 SCC 296; and that of this court in Girraj Kishore V. Dr. Trilok Nath Vimal : 1988 (2) ARC 178; and Smt. Ram Pyari & others v. VIth Addl. District Judge, Agra & others: 1997 (1) ARC 255.
17. I have given thoughtful consideration to the submissions of the learned counsel for the parties.
18. The first point that calls for consideration is whether the rent agreement (paper no. 26 Ga) was admissible in evidence or not. According to the learned counsel for the revisionist, the rent agreement was not admissible and therefore finding based on the said agreement is vitiated. He claims that the rent agreement is not admissible for two reasons:
(a) that under paragraph 2 of section 107 of the Transfer of Property Act, all leases of immovable property other than that mentioned in paragraph 1 of section 107 of the Transfer of Property Act are to be made either by a registered agreement or by oral agreement accompanied by delivery of possession and since the agreement in question was a written agreement and not an oral agreement, therefore, it was inadmissible by virtue of Section 107 of the Transfer of Property Act; and
(b) that as by clause 8 of the rent agreement, the rent payable was revisable after expiry of three years, therefore, the lease would be deemed to be for a period exceeding one year, which required compulsory registration.
19. The first ground taken by the learned counsel for the defendant to challenge the admissibility of the lease agreement is not sustainable for the reason that by U.P. Act No. 57 of 1976, paragraph 2 of Section 107 of the Transfer of Property Act was substituted, with effect from 01.01.1977, so as to provide that all other leases of immovable property, that is, other than those covered by the first paragraph of section 107 of the Transfer of Property Act, may be made either by a registered instrument or by an agreement oral or written, accompanied by delivery of possession. Meaning thereby that if a lease of immovable property is not from year to year, or for any term exceeding one year, or reserving yearly rent, can be made either: (a) by a registered agreement; or (b) by an oral agreement; or (c) by a written agreement, accompanied by delivery of possession. In Sube Deen v. Satyawati Devi and another 1996 (28) ALR 415, this court had the occasion to deal with the correctness of the decision of the Division Bench of this court in the case of Zarif Ahmad (supra). In paragraph 36 of the judgment in Sube Deen's case, as per the report, it was observed as follows:
"36. Learned counsel for the appellant placed reliance on a division bench judgment of this Court in Zarif Ahmad v. Satish Kumar, wherein it has held that if a lease-deed for letting out immovable property for a period of less than one year was not registered same could not be read in evidence and Section 107 of Transfer of Property Act was attracted to the same. A perusal of the judgment in Zarif Ahmad would show that U.P. Amendment was not considered by the Court while laying down the law on the point. The view to this effect was expressed by the Division Bench on a reference of the question to it so as to resolve the conflict between earlier decisions rendered by single Judges. In my opinion, in view of the U.P. Amendment of 1977 substituting para 2 of Section 107. it is not open for the learned counsel for the appellant to argue that lease agreement which was executed between the parties was not admissible in evidence only because that it was not registered under Section 17 of the Registration Act."
20. Even otherwise, the decision of this Court in the case of Zarif Ahmad (supra), cited by the learned counsel for the revisionist, has been reversed by the apex court in Satish Kumar v. Zarif Ahmed, (1997) 3 SCC 679, wherein it was held as under:
"The combined effect of all the provisions is that an unregistered lease 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-à-vis such property.
The High Court, therefore, was not right in reaching the conclusion that an unregistered document is inadmissible in evidence and cannot be looked into for the purpose of effecting the rights as landlord and tenant created under the document."
At this stage, it would be apposite to refer to Section 17(1)(d) of the Registration Act which provides that leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent would require compulsory registration. A conjoint reading of the provisions of section 107 of the Transfer of Property Act, as applicable in the State of U.P., and section 17(1)(d) of the Registration Act would go to show that written lease agreement would not require compulsory registration if it is not a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent. Accordingly, the contention that being a written tenancy agreement the rent agreement (Paper No. 26 Ga) required compulsory registration, is not acceptable.
21. The contention that since the rent agreement reserved a right to increase the rate of rent after expiry of three years the term of the lease would be deemed to be in excess of one year cannot be accepted, because the rent agreement specifically, in clause 1 thereof, provided that the tenancy shall be a month to month tenancy, commencing from first day of the month and terminating on the last day of the month, without mentioning that it is a tenancy from year to year or for any period exceeding one year or reserving a yearly rent. Further, from clause 10 of the rent agreement, which provided that on termination of tenancy the second party would have right to get back his security money from the first party, it was clear that the tenancy was terminable. A conjoint reading of clause 10 with clause 1 of the terms and conditions of the rent agreement, in absence of there being any provision in the rent agreement providing a fixed term to the lease, would go to show that the tenancy was a month to month tenancy, which was terminable in accordance with law. Accordingly, the clause in the rent agreement providing for revision of rent after expiry of three years does not create a demise of one year or above, what it simply does is that if the tenancy continues for three years, the rent will be enhanced. I am therefore of the considered view that there is nothing in the agreement which may make it compulsorily registrable either under Section 107 of the Transfer of Property Act or under section 17 (1)(d) of the Registration Act.
22. In view of the discussion made above, the contention of the learned counsel for the revisionist that the court below had erred in law by placing reliance on the rent agreement (paper no. 26 Ga) is not acceptable and is, accordingly, rejected.
23. So far as the contention that notice did not terminate the tenancy because it was served only on one of the tenants in common is concerned, suffice to say that from the terms of the rent agreement it is clear that both father and son, that is the defendant and his father, were conferred unity of title and possession thereby making them joint tenants, as correctly found by the court below. Therefore, in view of the settled law that service of termination tenancy notice on anyone of the joint tenants is sufficient to terminate the tenancy and the suit instituted against anyone of the joint tenants, without impleading other joint tenants, is not bad for non-joinder of necessary party, neither the notice nor the suit can be said to be bad in law. Further, from the evidence brought on record, it has been found that the defendant alone was the tenant because he had admitted during his cross-examination that the rent receipts disclosed only his name as tenant inasmuch as he alone was the tenant, who was paying rent. Even otherwise, though his father had joined in signing the tenancy agreement but his right would not be better than that of a joint tenant. I, therefore, find no error in the finding returned by the court below that neither the notice terminating tenancy nor the suit was bad either for non service on, or non joinder of, the other joint tenant.
24. The other contention of the learned counsel for the revisionist relates to the competence of the plaintiff alone to institute the suit, being just a co-owner of the suit property. On this issue, the court below has rendered a detailed finding that the rent agreement, which was admitted to have been signed by the defendant, had clearly specified that the premises in question was built by the first party (the plaintiff) and the second party (the defendant and his father) had demanded the said premises on rent from the first party. The court also found that the other persons, who the defendants claimed to be co-owners, had signed at the margin of the rent agreement accepting the terms of the agreement. It further found that except that there were pending civil disputes between alleged co-owners there was no reliable evidence led by the defendant to show that there were other co-owners/ landlords of the premises in dispute, therefore, the plea taken by the defendant was not acceptable. I do not find any error in the said finding. Even otherwise, once the defendant is privy to the rent agreement, which discloses that the defendant took the premises on rent from the plaintiff, in view of section 116 of the Evidence Act, he cannot deny the title and the right of the plaintiff to bring a suit against him. Further, in view of the law {(Kasthuri Radhakrishnan (supra) and Girraj Kishore (supra)} cited by the learned counsel for plaintiff respondent, the suit as well as notice terminating tenancy would not be bad at the instance of anyone of the co-owners. Thus, this Court is of the view that the court below rightly held the suit to be maintainable at the instance of the plaintiff alone.
25. No other point has been pressed.
26. For the reasons recorded above and having carefully perused the judgment passed by the court below as also the material brought on record, I do not find any good ground to interfere with the order passed by the court below.
27. However, considering the facts and circumstances of the case, this Court finds it appropriate that the defendant be allowed time up to 31st August, 2016 to vacate the premises subject to deposit of entire decretal amount as also damages, as awarded by the court below, payable up to 31st August 2016, by 15th of July, 2016. In addition to above, an undertaking must also be given by 15th July, 2016 that he shall vacate the premises and hand over peaceful and vacant possession to the plaintiff by 31st August, 2016. It is provided that in case of default in compliance of any of the conditions mentioned herein above, the decree shall become executable. It is, further provided that if the defendant fails to vacate the premises by 31st August, 2016, after having furnished an undertaking as directed above, he shall also be liable for contempt of this Court, apart from eviction through execution.
28. Subject to above, the revision is dismissed. There shall be no order as to costs.
Order Date :- 27.5.2016 Sunil Kr Tiwari