1. Heard Sri Ramendra Asthana, learned counsel for the appellants and Sri S.K. Mishra, learned counsel for the respondents.
2. This is defendant's second appeal against the judgment and decree dated 09.03.2018 passed by District Judge, in Civil Appeal No. 59 of 1993, Jhansi, affirming the judgment and decree dated 22.02.1993 passed by Additional Munsif No. III, Jhansi, whereby the Original Suit No. 230 of 1989 of the plaintiff for recovery of arrears of rent and ejectment was decreed.
3. The brief facts of the plaint are that original plaintiff, Ali Bux, was owner in possession of house no. 789/01 and adjacent plot, situated behind Chhoti Masjid, Masihaganj, Sipri Bazar, Jhansi and deceased original defendant, Ram Lal, was tenant over the said land at a monthly rent of Rs. 45; that the tenancy started from 15th day of every month and ended on 14th day of next month; that initially the land was let out to the defendant for running a wood shop but he stopped the aforesaid business and unauthorizedly started business of selling sweets thereon; that defendant took electricity and water connection and on objection by the plaintiff, he created dispute; that provisions of U.P. Act no. 13 of 1972 are not applicable on the land in dispute; that the plaintiff needed the land for his son hence he sent a notice dated 16.01.1989 terminating his tenancy which was served on him on 18.01.1989; that defendant instead of vacating the land sub-letted a portion of the same to one Anwar Khan who started the work of repairing tins and tanks; that the plaintiff instituted the suit for ejectment for defendant as well as for recovery of arrears of rent of Rs. 93/-, damages for unlawful use and occupation amounting to Rs. 40 and mesne profit of Rs. 45 per month.
4. The defendant, Ram Lal, contested the suit by filing written statement and denied relationship of landlord and tenant between the parties and having taken the disputed plot on rent from the plaintiff; that he claimed ownership over the plot on the basis of a lease and possession for the last 40 years as owner, stating that plaintiff had never been in possession of the disputed land and he has become owner by adverse possession; that he further raised the plea that the suit is barred by limitation and deserves to be dismissed with special costs.
5. The learned trial Court on the basis of pleadings of parties framed the following issues in Hindi, the English translation of which is as follows:-
(I) Whether the notice of plaintiff is illegal?
(II) Whether there is relationship of landlord and tenant between plaintiff and the defendant?
(III) Whether the suit is barred by limitation?
(IV) Whether the defendant is owner in possession of disputed property by way of adverse possession?
(V) Whether the suit of plaintiff is barred by principles of estoppel and acquiescence?
(VI) Whether the defendant sublet the plot, in question, to Anwar Khan? If yes, its effect?
6. In support of his case, deceased-plaintiff, Ali Bux, vide list 7C-1, filed copy of notice, as paper no. 8C-1, postal receipt, 9C-1 and vide list dated 07.09.1991, the extract of Khatauni 1397 Fasli and 1356 Fasli. He also filed vide list 49C-1, the report of expert, as paper no. 50C-2. He also filed vide list 18C-1, the original sale deed with map, paper no. 19, rent note, 20A/1, rent note Pyare Lal, paper no. 22A-1, receipt of house tax of Ali Bux, paper no. 23C-1, maps 21A-1 and 24A-1.
In oral evidence, deceased plaintiff examined himself as P.W.-1 and one Ram Narain Verma, Writting Expert, as P.W.-2.
In support of his case, deceased defendant vide list 20C-1, filed, lease, paper no. 30A-1 receipt of Jal Sansthan, as paper nos. 30C-1 and 32C-1, in documentary evidence.
In oral evidence, he examined himself as D.W.-1.
7. The trial court decided issue no. 1, holding that the defendant has not proved how the notice was illegal and therefore the notice paper no. 8C/1 under Section 106 of Transfer of Property Act is valid. Issue no. 2 was decided holding that the landlord has proved the ownership of the suit property from the sale deed, sanctioned map and Khatauni while the defendant has failed to prove the lease executed in his favour by producing any witness and therefore the relationship of landlord and tenant between the parties stands proved. Issue no. 3 was decided holding that since the defendant has not been able to prove that he is in possession over the suit property for last 40 years on the basis of lease, paper no. 30A/1, therefore the suit is not barred by limitation. Issue no. 4 was also decided against the defendant holding that he has failed to prove that he is in possession on the basis of the lease and since he has been found to be a tenant therefore he cannot claim ownership by way of adverse possession. Issue no. 5 was decided holding that the suit is not barred by the principles of estoppel and acquiescence since the defendant has been found to be tenant of the same. Regarding issue no. 6 the trial court held the plaintiff himself has stated that he has removed Anwar Khan from possession over the part of the land in possession of defendant during the pendency of the suit therefore the issuue was decided against the plaintiff and in favour of the defendant.
8. The learned trial court decreed the suit of the plaintiff for ejectment of defendant as well as for recovery of arrears of rent of Rs. 93 and damages of Rs. 40. Plaintiff was held entitled to mesne profit at the rate of Rs. 45 per month till actual delivery of possession of the property to him. Defendant was directed to give possession of the disputed land to the plaintiff within two months.
9. Aggrieved by the judgment and decree of the trial court, the defendant preferred Civil Appeal No. 59 of 1993. He died during the pendency of the appeal and therefore his legal heirs were substituted before the lower appellate court. Plaintiff also died during the pendency of appeal and his legal heirs were substituted.
10. The lower appellate court famed the following point determination in the Civil Appeal as follows:
1. Whether defendant/appellant is tenant of plaintiff/respondent as averred in plaint?
2. Whether the defendant/appellant become the owner of disputed land by virtue of adverse possession?
3. Whether th suit of the plaintiff respondent is barred by limitation as well as principles of acquiescence and estoppel?
4. Relief?
11. Point of determination nos. 1 and 2 were decided in favour of the plaintiff. The lower appellate court has considered the entire evidence the detail and has found that the plaintiff has proved his source of title to the suit property by adducing evidence but the defendant who filed the lease allegedly executed in his favour in which witnesses, Amarnath and Prem Chand, have been mentioned have not been examined despite admission of the defendant that they were alive during trial. Since the claim of the defendant of adverse possession over the disputed land was based on the lease, which was not found to be proved, therefore the lower appellate court held that the plea of adverse possession set up by the defendant has not been proved. Point of determination no. 3 was decided by the lower appellate court holding that the plaintiff sent the notice dated 16.01.1989 to the defendant, receipt whereof was admitted by the defendant, but he did not filed reply to the same in evidence, despite admitting that he sent a reply to the same. This fact proves that the plaintiff had terminated the tenancy of the defendant by the notice, 8C/1. The suit was instituted on 15.03.1989 within three years of the notice dated 18.01.1989, terminating the tenancy of the defendant. Therefore the suit has been held to be not barred by limitation. Regarding the last point of relief the lower appellate court held that the plaintiff has proved that he was owner of disputed land and the defendant was his tenant, whose tenancy was terminated, hence the plaintiff is entitled to relief as granted to him by the trial court and the Civil Appeal of the defendant was dismissed.
12. This second appeal has been preferred by one of the legal heirs of deceased defendant against the judgments and decrees of both the courts below.
13. The learned counsel for the appellants has argued that a conjoint reading of provisions of Sections 54 and 55 of Transfer of Property Act leads to an irresistible conclusion that transfer of property can be made only by a registered document and in the absence of a deed of conveyance (duly stamped and registered and registered by law) no right title or interest in an immovable of property can be transferred. No relief could be granted to the plaintiff/respondent inter-alia in view of the fact that the notice alleged to have been sent by the plaintiff/respondent was not a valid one and is based on a rent note which has not been proved in accordance with law as contained in Sections 17, 61 and 62 of the Indian Evidence Act. Proof of contents of any document is to be proved in accordance with law and mere production and marking of a document as Exhibit is not enough. The Patta DAWAMI was an unregistered document would not ipso-facto mean that it is not admissible in evidence. No relief could have been granted to the plaintiff/respondent in view of the fact that suit giving rise to the second appeal was barred by limitation apart from the fact that it was hit by the principle of estoppl and acquiescence. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (sale deed) would fall short of the requirements of Sections 54 and 55 of the T.P. Act and will not confer any title or transfer any interest in any immovable property. It is a well settled principle of law that an unregistered lease deed can not be admitted to prove the terms and conditions of lease or rate of rent on which the premises was let out. The impugned decrees and judgments are liable to be set-aside in the second appeal on the ground that the learned court of the first instance has not complied with the directions of the learned lower appellate court contained in the remand order.
14. The learned counsel for the appellant has relied upon the judgment of the apex court in the case of the Greater Bombay Co-operative bank Limited vs. Mr. Nagraj Ganeshmal Jain and Others, 2018 (1) ARC 535, paragraph no. 15 and 16, wherein it has been held that the immovable property can be transferred only by a registered document had no transfer of any right, title or interest in any immovable property can take place except by way of registered document. Further reliance has been made on this court's judgment in the case of Zarif Ahmad and Anr. Vs Satish Kumar and Anr, wherein it was held that Section 49 of the Registration Act puts a complete bar to admission of a document evidencing the terms of contract for which registration is compulsorily required by Section 17(1)(d) of the Registration Act or Section 107 of the Transfer of Property Act. It further provides that under the proviso to Section 49, only so long as an unregistered document does not purport or operate to do anything said in Section 107, the same may be considered by the court. But the terms and conditions on which immovable property is leased out and which is an integral part of the same, the law does not permits such a document to be admitted for those purposes. Learned counsel has stated that the term "collateral purposes" used in Section 49 of Registration Act relationship of landlord and tenant, rate of rent and period for which lease has been granted are not the collateral purposes.
15. Another argument of the counsel for the appellant is that mere production and marking of a document as exhibit by the court cannot be held to be a duly proved document. Its execution has to be proved by admissible evidence which is the evidence which will prove the content of the document as true. Reliance has been placed on the judgment of this court in the case of Girraj Kishor vs. Rameshwar Pratap Sharma and Anr. 2018(2) ARC 185, wherein the Apex Court has endorsed the above view.
16. Learned counsel for the respondent has argued that the argument of the learned counsel for the appellant is misconceived. A unilateral document executed by the tenant undertaking to take the property on rent for a period of one year and undertaking to pay the rent thereof month to month, and undertaking to vacate the same on demand and further undertaking not to let out the same to any third person, is a unilateral document. The document executed by defendant, paper no. 20A/1, has been executed by defendant unilaterally and it is not required to be registered, not being a bilateral document or a lease deed. He has relied upon the judgment of this court in the case of Moti Lal vs. Nirmal Kumari, LAWS (All) 1985-10-17, paragraph 8 and 9. In this case the judgment of Zarif Ahmad (supra) has been stated to be unapplicable to the case where a unilateral document executed by tenant laying down the terms on which he took property on rent is in dispute. In this case this court has held that such unilateral document is not required to be registered as per Section 17(1)(d) of the Registration Act and Section 107 of the Transfer of Property Act. Reliance has further been placed on the judgment of this court in the case of Mahavir Prasad Agrawal vs. Brij Nath Gigras, ARC, 1989 (1) 413 where this court defined the essentials of lease and held that the document unilaterally executed by tenant is not a lease but only a rent note and it is not required to be registered. Even unregistered rent note is admissible in evidence.
17. After hearing the rival contentions this court finds that the only dispute raised in this appeal is whether the rent note, paper no. 20A-1 executed by defendant Ram Lal unilaterally taking the open land of plaintiff on rent for one year and agreeing to pay the rent month to month, was required to be registered for the purpose of being read in evidence in suit or not. Second point for consideration is whether the defendant proved his defence based on the plea of adverse possession.
18. Learned counsel for the appellant has relied upon the authorities cited above which lay down the law that a rent deed/lease deed is compulsorily registerable for the purpose of being admissible in evidence. However the learned counsel for the respondent has relied upon the authorities which prove that a unilateral document executed by the tenant taking the property of the land lord on rent and binding himself to certain terms unilaterally is not necessarily registerable for the purposes of being considered in evidence. The counsel for the appellant has raised the plea that the aforesaid rent note was required to be registered and being the basis of the notice under Section 106 of the Transfer of Property Act, sent by the plaintiff to the defendant, its contents were required to be proved. Merely because the rent note was exhibited , it cannot be presumed that the terms of tenancy mentioned therein were proved.
19. In the present case there was no issue regarding the terms of tenancy mentioned in the rent note in dispute. The rent note was relevant only for the purpose proving the tenancy of defendant. The rent note was executed by defendant and handwriting expert proved its due execution. No report of the hand writing expert was produced by the defendant to prove that the report submitted by the hand writing expert of the plaintiff is not correct. Once the signature of the defendant on the rent note was found to be genuine by the court below there remains no ground to dispute the rent note at this stage.
20.Regarding the claim of the defendant of his title over the land in dispute on the basis of the "Patta Dawami", it is observed that the aforesaid lease was not proved to have been validly executed by its executors. Both the courts below have found that the executors of the alleged lease were admitted by the defendant to be alive during the proceedings of the trial court but none of them were produced in evidence to prove the deed. Therefore the defense of the defendant that he is owner of the property in dispute on the basis of lease was not proved.
21. The plea of adverse possession was also set up by the defendant contrary to the claim on the basis of lease. This plea was also not found to be proved by the court below. The learned counsel for the defendant-appellant has relied upon the judgment of the Apex Court in G. Nagamma & Anr vs Siromanamma & Anr., (1996) 2 SCC 25, wherein it was held that even inconsistent pleas can be pleaded by the plaintiff in his suit. The judgment relates to the plea of alternative relief sought by the plaintiff in his plaint by way of amendment therein. In this case the inconsistent pleas have been set up by the defendant, none of which were proved. Being findings of fact this court cannot reappraise the same.
22. Both the courts below have recorded concurrent findings of fact against the defendant and in second appeal the findings of fact cannot be reappraised. The Apex Court has held in the case of Mohan Lal vs. Nihal Singh, 2001 LAW Suit (SC) 1400 wherein the observations are quoted below:
11. The question of possession of the suit land is essentially one of fact. As noted earlier, the trial court on appreciation of the oral and documentary evidence on record declined to accept the case of the defendant that the lease deed executed by him in favour of the plaintiff was a mere paper transaction and that he (defendant) had remained in possession of the property all along. The trial court recorded a positive finding based on the revenue records and the oral evidence led by the plaintiff that he had come into possession of the land under the lease deed and continued to possess the same all along. The lower appellate court, which is the final Court of fact, confirmed the finding of the trial court regarding plaintiffs possession over the suit land and upheld the judgment of the trial court decreeing the suit. Before the High Court the contention that was raised related to the question of possession. There was hardly any scope for the High Court to interfere with the finding of possession concurrently recorded by the Courts below within the limited parameters of section 100 of the Civil Procedure Code. As the second appeal did not involve any substantial question of law the High Court rightly dismissed the same.
23. Further reliance has been made on paragraph no. 59 and 60 of the judgment of Apex Court in the case of Gurdev Kaur vs. Kaki, 2006 LAW Suit (SC) 1221,
59. Despite repeated declarations of law by the judgments of this Court and the Privy Council for over a century, still the scope of Section 100 has not been correctly appreciated and applied by the High Courts in a large number of cases. In the facts and circumstances of this case the High Court interfered with the pure findings of fact even after the amendment of Section 100 C.P.C. in 1976. The High Court would not have been justified in interfering with the concurrent findings of fact in this case even prior to the amendment of Section 100 C.P.C.. The judgment of the High Court is clearly against the provisions of Section 100 and in no uncertain terms clearly violates the legislative intention.
60. In view of the clear legislative mandate crystallized by a series of judgments of the Privy Council and this Court ranging from 1890 to 2006, the High Court in law could not have interfered with pure findings of facts arrived at by the courts below. Consequently, the impugned judgment is set aside and this appeal is allowed with costs.
24. This second appeal is accordingly dismissed. In view of the above mandate of the Apex Court. No interference is required in the concurrent findings of fact recorded by the court below under Order 41 Rule 11 C.P.C. Parties shall bear their own costs.
Order Date: 28.08.2018 Rohit