1. This writ petition has arisen from the ejectment proceedings initiated by Sri Syed Rahman Ali, respondent No. 3 against Mohd. Ilias and others from House No. R-13/120 situate at Halqa Madan, Nai Ki Mandi, Agra wherein he succeeded before the trial Court, i.e. Judge, Small Causes Court, who decreed SCC Suit No. 1473 of 1976 vide judgment and decree dated 22.2.1986. Thereagainst revision preferred by petitioner-tenant i.e. Civil Revision No. 14 of 1986 has been dismissed by the 10th Additional District Judge, Agra vide judgment and decree dated 26.7.1993.
2. The facts in brief giving rise to the dispute in the present writ petition may be summarized as under:
3. The predecessors of petitioners namely Mohd. Siddiq and his wife Smt. Inayati Begum were owners in possession of the disputed premises. They lived throughout their life in the aforesaid accommodation and after their death, petitioners are continuously residing thereat. The petitioners' predecessors in interest got a loan from one Bashir Khan son of Nazeer Khan and mortgaged the disputed house in favour of the loaner so as to secure repayment thereof. Legal terminology used for the aforesaid transaction by the petitioner is 'ostensible sale' with condition of re-sale to the vendors within five years of payment of Rs. 800/- in advance to the vendee on 16/17/6.1943. The vendees failed to repay the loan and when the time was going to lapse, one Syed Raman i.e. respondent No. 3, who was related to Sri Mohd. Siddiq and Smt. Inayati Begum came to their rescue, paid back loan to Bashir Khan on behalf of petitioners' predecessors in interest, got a similar deed executed in his favour on 15.10.1947, registered on 04.11.1947. Repayment was to be made within 10 years and the loan amount was Rs. 900/-. A copy of Hindi translation of the document has been placed on record as Annexure- 1 to the writ petition. The possession over the suit house continued with predecessors of petitioners and after their death, the heirs i.e. Mohd. Siddiq and Smt. Inayati Begum continued despite execution of sale deed dated 16.6.1947 and 15.10.1947.
4. The petitioners' predecessors in interest could not repay loan to respondent No. 3. Thereupon he started claiming himself to be owner of the house. In Municipal Record, name of respondent No. 3 was entered as owner. Respondent No. 3 thereafter claimed damages from petitioner's predecessors in interest for use of the house and for vacating the same.
5. A notice dated 06.05.1950 was served upon Smt. Inayati Begum on 08.05.1950, which was replied by her denying title of respondent No. 3. After the death of the predecessors in interest, petitioner instituted Original Suit No. 241 of 1965 for redemption of mortgaged property, which was dismissed and thereagainst petitioners lost in the First Appeal. Second Appeal i.e. 1426 of 1967 was also dismissed by this Court vide judgement dated 25.02.1970. The judgment shows that the document dated 15.10.1947 constituted as a sale of disputed building in favour of respondent No. 3 and not a mortgage. Thereafter, respondent No. 3, instituted SCC Suit No. 1473 of 1976 seeking eviction of petitioners from the suit premises, alleging that rent has not been paid after 15.10.1948 and therefore, the defendant-petitioners are liable for ejectment.
6. The suit was contested by petitioners, stating that plaintiffs are not owner of the house and between plaintiffs and defendants, there is no relationship of landlord and tenant and the suit was not maintainable in the Small Causes Court, hence plaint was liable for return under Section 23 of Provincial Small Causes Courts Act, 1887.
7. Plaintiff-respondent No. 3 adduced evidence i.e. 'Qabuliat' Document dated 16.10.1947 alleged to have been executed by predecessors in interest of the petitioners, admitting tenancy in the suit property creating relationship of landlord and tenant between plaintiff-respondents and predecessors in interest of defendant-pettiioners. The plaintiff also filed certain rent receipts claiming that counterfoils bear signatures of Smt. Inayati Begum. It is stated that petitioners, while contesting the suit, placed on record, statement of plaintiff-respondent No. 3, which he had deposed in Original Suit No. 241 of 1965, showing that he never got possession of suit property and even after execution of deed dated 15.10.1947, possession continued with Smt. Inayati Begum. The trial Court however, decreed the suit vide judgment and decree dated 22.2.1986 and thereagainst petitioners revision has also been dismissed by the Revisional Court.
8. Sri Salil Rai, learned counsel for petitioners contended that the courts below have committed manifest error in relying upon 'Qabuliat' dated 16.10.1947 to show that it establishes relationship of landlord and tenant, though the aforesaid document was unregistered and hence, inadmissible evidence. He said that from the deed dated 15.10.1947, there is nothing to show that possession was ever handed over to respondent No. 3. The status of predecessors in interest of petitioners in respect of the suit property never changed from owner to any other capacity, and, therefore, Courts below have not only committed illegality in treating as if there existed relationship of landlord and tenant but have completely erred in law in proceedings with SCC Suit though such suit was not maintainable and the plaint was liable to be returned.
9. However, Sri M.A. Qadeer, learned counsel for respondents on the contrary defended the judgments of the courts below referring to the reasons therein.
10. I have heard learned counsels at length and have given my anxious thought to the pleadings and arguments advanced, the documents produced, relevant statutory provisions as also judicial precedents on the issues.
11. The first question that cropped up is whether respondent became owner of the property in dispute after execution of deed dated 15.10.1947. In my view, this question has already attained finality after dismissal of Second Appeal No. 1425 of 1967, which was contested between predecessors in interest of petitioners and respondent No. 3. It cannot be doubted that petitioners are claiming their interest through their predecessors in interest after their death. Therefore, the issues which have already been finally adjudicated between said predecessors and respondent No. 3, shall operate as res judicata against the petitioners also. In Original Suit No. 241 of 1965 instituted by Mohd. Siddiq and Smt. Inayati Begum, the predecessors of the petitioners, it has already been settled that the deed dated 15.10.1947 was a sale deed and not a deed of mortgage. This is evident from the findings recorded by this Court also in its judgment dated 25.02.1970 while dismissing Second Appeal of Sri Mohd. Siddiq and Smt. Inayati Begum, which is as under:
"The short point for decision in this appeal is as to whether the document dated 15th October, 1947 is a mortgage or a sale out and out. The plaintiffs treating the document as mortgage had instituted the present suit for redemption on payment of Rs.900/-. The suit was contested on the ground that the document dated 15th October, 1947 was not a mortgage but a sale out and out. Both the courts below have accepted the document to be a sale and not a mortgage."
12. The aforesaid adjudication, therefore, closed the issue with regard to ownership over suit property. The status of respondent No. 3, in respect of suit property, neither can be allowed to be re-agitated by the petitioners nor can be looked into at this stage nor in any other suit proceedings, nor it is open to the petitioners to raise this issue now.
13. The second question is regarding possession. A copy of the deed dated 15.10.1947, has been placed on record as Annexure-1 to the writ petition. It was executed by Sri Mohd. Siddiq and Smt. inayati Begum and it clearly said that title of the property as also possession has been handed over to respondent No. 3, Sri Rahman Ali. The relevant extract of the aforesaid document is reproduced as under:
"fygktk tk;nkn etdwj dks e; teh gd gdwd nk[kyh o [kkjth ds cjtk o lfor [kqn o dher eq0 [email protected]& flDdk ljdkj fd fulQ mlds [email protected]& gksrs gS cnLr jgeku vyh oYn lb;n fu;kt vHkh dksse lb;n lk0 gydk enu ukbZ e.Myh vkxjk ds cS fd;k vkSj dqy tks leu eqa'kh th ls olwyh ik;k vkSj dCtk o n[ky tk;nkn eqcb;k ij eq'k=h dks vkSj ekfyd dkfey cuk fn;k"
"Hence, the aforesaid property along with the right of its mutation, in all consciousness, is transferred to Mr. Rehman Ali, son of Syed Niyaz Ali, Caste Syed, R/o Halka Madan Nai ki Mandi, Agra, for a consideration of 900/- current coins, half of which comes to 450/-, total payment whereof, has been received from the buyer and title of the property as also its possession has been handed over to the purchaser, making him to be the absolute owner." (English translation by Court) The aforesaid document also refers to an issue whether the aforesaid predecessors in interest have to pay rent and if they commit any default, then what would proceed. The indication comes from the following paragraphs.
"'krZ djkj ikbZ gS fd vxj eqdjku ua 1 o 2 vUnj fe;kn nl lky ds edku etdwj [kjhnuk pkgsaxs rks eq0 900 tks leu ds eq'k=h dks vnk dj nsaxs rks fcukek tk;nkn etdwu dk eq'k=h dks o okjlku eq'k=h dks gekjs okjlku gekjks ds gd esa djuk ykfteh gksxk vkSj vxj eq'k=h vUnj fe;kn 10 lky ds fedjku ua0 1 o 2 o okfjlku gekjs ds gd esa tjs leu vanj djus ij cS djus tk;nkn ls badkj djsa rks fdjk;k ua0 1 o 2 badkj djsa rks fedjku ua0 1 o 2 o gekjks dks gd gksxk fd otfj;s vnkyr rdehu cSukek djkds tcfj;k jftLVªh djkys -------------"
"It is agreed that if executants (occupants/tenants) no.1 and 2 intends to purchase the house aforesaid within a period of ten years, they shall pay total sum of Rs.900/-to the seller and it shall be incumbent upon the seller and his successors to execute sale deed of the aforesaid property in favour of us (executants no.1 and 2) and our successors and, if the seller even after the payment of agreed amount within a period of ten years, refuses to transfer the property in favour of executants no. 1 and 2 and our successors, then executants no.1 and 2 shall have the rights to get the sale deed executed and registered through the Court of law..." (English translation by Court)
15. This is fortified from the document of Qabuliat, which has been placed in evidence before the courts below, in which the petitioners predecessors in interest admitted their tenancy and agreed to pay rent to respondent No. 3. It is also supported from oral statement deposed by the respondent No. 3 in Original Suit No. 241 of 1965, which was placed in evidence before Courts below by petitioners themselves and a copy whereof has been placed on record of this writ petition as Annexure-7.
16. The aforesaid statement clearly shows that respondent No. 3, after becoming owner, simultaneously entered into relationship of landlord and tenant with predecessors in interest of petitioners qua suit property and the said relationship is reiterated in a rent note (Qabuliat) which was written on the next date i.e. on 16.7.1947 on a stamp paper. Nothing otherwise has been placed on record to discredit the above state of affairs and the evidence. Now the only question remains for consideration is, whether lower court has committed any manifest error in relying on 'Qabuliat' dated 16.10.1947 since it was not a registered document. Copy of the aforesaid document is Annexure-5 to the wit petition which shows that relationship of landlord and tenant was created thereby with respect to suit property for a monthly rent of Rs. 5/-. The document is witnessed by two persons namely Syed Abid and Mohd. Safi.
17. In Chotey Lal Vs. Mt. Durga Bai, AIR (37) 1950 Allahabad 661 [C.N. 259](1), Hon'ble Bind Basni Prasad, J. has observed that a lease deed which is for a period of more than one year should be executed by the lessor and lessee, both, or their counterparts. When it is for a period of more than one year, it should be registered also. These formalities, if not complied with, the document cannot be treated as a lease.
18. If a person has got possession of a site on the basis of contract, it can be treated to be a permissive possession. This Court however, noticed an earlier decision in Mirza Mohhammad Hasan Vs. Buddhu, AIR 1938 Allahabad 32, wherein it was held that though the registered Qabuliat did not create a valid lease, it was nevertheless admissible in evidence for the purpose of determining nature of defendant's possession.
19. In Ganga Sahai Vs. Badrul Islam, AIR (29) 1942 Allahabad 330, there was 'Kirayanama" signed by the defendant. The Court held that it should be treated as a licence and even though such "Kirayanama" would not operate as a lease, the defendant occupant was legally bound by the terms of such document.
20. There is another decision in Maqbool Ahmad v. Debt. AIR (36) 1949 ALL, 455 observing that mere 'rent note' or a 'Qabuliat' does not amount to a lease, yet the person executing the said 'rent note' is bound by its terms as a matter of his undertaking although the other party who has not signed the document would not be bound by it.
21. I find that this question of registration and admissibility of an unregistered document, titled as a Qabuliat or 'rent note' has been considered by this Court recently in Writ Petition No. 58850 of 2012, Shri Satendra Pal Singh Vs. Sri Dwarika Das And Others decided on 8.11.2012 reported in LAWS (ALL)-2012-11-59 and REVDEC-2013-118-242, A document similar in nature to the present one was under consideration therein. The Court referring to Sections 17 & 49 of the Registration Act (as amended in U.P. ) said as under:
17.Section 17(1)(d) clearly shows that a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent is compulsorily registrable. A lease/rent note of immovable property for a period less than one year is not compulsorily registrable. A document which is not compulsorily registrable cannot be ignored merely on the ground that it is not a registered document. In Moti Lal Vs. Smt. Nirmal Kumari, AIR 1986 All 270 this Court said that a rent note which is not required to be registered cannot be ignored merely on the ground that it is not a registered document.
18.The question about necessity of registration of a document which is unilateral like a Kabuliyat has been considered in Smt. Hawivan Begum Vs. Special Judge, Writ Petition No. 6529 of 1990, decided on 30.07.2012 and in para 8 of the judgement the Court said:
"8. The first question would be, in my view, nature of aforesaid document. Admittedly, it cannot be treated to be either a rent note or an agreement between the parties for the reason that such a document has necessarily to be a bilateral document. Apparently, it is a unilateral document said to have been written by respondent-tenant in favour of landlord acknowledging possession of property in question as also his consent to pay rent of the said property @ Rs.150/- per month in future on monthly basis. Nothing has been shown to this Court wherefrom it can be assumed that the said document need be registered."
19.Following this Court's decision in Moti Lal Vs. Smt. Nirmal Kumari (supra) and referring Smt. Hawivan Begum (supra), in Thakur Prasad and others Vs. Gopal Gaushala and Gopal Hindi Sanskrit Pathshala, Rasin and others, Writ Petition No. 63750 of 2011, decided on 04.09.2012, this Court in para 5 of the judgment, said:
"5. In the circumstances, the Courts below have not erred in relying on the lease deed in question which was not required compulsorily registerable having been executed only for a period of 11 months, as is evident from Clause 12 thereof i.e. Annexure 1 to the writ petition."
20.Now coming to various authorities cited at the bar. I find that in view of specific provisions available in U.P., these authorities lend no help to him.
21.Learned counsel for the petitioner has tried to distinguish the judgment of this Court in Nawal Kishore Varshney (supra) on the basis of authorities of certain other High Courts as also the Apex Court's decision in Avinash Kumar Chauhan (supra). This Court finds that the kind of leases required to be registered have to be looked into from the point of view of various statutes namely, Act, 1908, Transfer of Property Act, 1882 (hereinafter referred to as the "Act, 1882") read with the provisions of Act, 1899. Act, 1899 nowhere talks of the kinds of document required to be registered but it is confined to the scope of chargeability of duty on various documents. That is not the core issue need be looked into hereat. The Trial Court's judgment clearly shows that rent note was on stamp paper and whether same was sufficient or not, was never the issue either thereat or before here. Act 1908 and Act 1882, in respect to requirement of registration of leases, contains some State amendments made by U.P. Legislature.
22.In Section 107 of Act, 1882 there is an amendment by U.P. Act No. 57 of 1976 which came into force on 01.01.1977 and, therefore, Section 107 as amended in U.P. reads as under;
"107. Lease how made.--A lease of immoveable 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 immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.
Where a lease of immoveable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee;
Provided that the State Government may from time to time, by notification in the Official Gazette, direct that leases of immoveable property, other than leases from year to year, of for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession." (emphasis added)
23.Consistent with the aforesaid amendment made in Act, 1882, U.P. Legislature has also made amendment in Act, 1908, i.e., in Section 49 and Section 17(1), already reproduced above. It is in the light of these amended provisions the judgements have been referred to by this Court in Shyam Lal Vs. Vth Additional District Judge, 1989(1) ARC 267 and Nawal Kishore Varshney (supra). Since both the judgments are in the context of provisions relating to "lease" as admissible in State of U.P., and about their requirement of registration, the decisions of other High Courts and Apex Court arising out of different provisions cannot be said to be a binding precedent for the reason of apparent distinction in the relevant provisions. The State amendment has made a "rent note" unilaterally executed, of the kind in question, not compulsorily registrable and that being so it cannot be excluded from admitting for an evidence. The various authorities cited at the bar by Sri Chadha, therefore, apparently have no application in the present case. In absence to show that the document in question was required to be compulsorily registrable, it cannot be argued that it could not have been admitted as evidence.
24. Avinash Kumar Chauhan (supra) is a matter having arisen from Raipur (State of Chattishgarh). The Court found that admittedly the document was not adequately stamped. This is evident from para 18 of the judgment. Once a document is not duly stamped, the Court is empowered to pass order in terms of Section 35 of Act, 1899 and such a document would be admissible in evidence. It held that even for collateral purposes it can be admitted in evidence. The Court relied on Privy Council's decision in Ram Rattan Vs. Parmanand, AIR 1946 PC 51. It also referred to the provisions of Registration Act with regard to requirement of registration but the provisions pari materia to amendments introduced in Act, 1908 by State Legislature of Uttar Pradesh were not under consideration therein, hence the decision would not help petitioner in the present case where there is nothing on record to show that document in question was not adequately and sufficiently stamped.
25.In Ganpat Mal Dhariwal (supra) the question was, whether the document Exhibit A1 could be admitted in evidence though neither it was properly stamped nor registered. This is evident from para 29 of the judgment. The Court held that an unregistered document cannot be admitted in evidence even for collateral purposes. The Court relied on its earlier decision in Smt. Jamna Bai Vs. Tulsi Ram, AIR 1997 Raj 85 and Harshvardhan Singh Vs. Ranveer Singh, AIR 1997 Raj 211. It also relied on its decision in Smt. Keshar Vs. State of Rajasthan, 1996(1) Raj LR 576 in taking the view that Section 91 of Evidence Act excludes oral evidence in proof of terms of such agreement to sale which requires registration whereas Section 49 of Registration Act prohibits its receivability in evidence. The issue that the document in question, whether was registrable or not, was not in consideration and so far as sufficiency of stamp duty is concerned, that is not an issue in the present case.
26.Similarly Smt. Bidya Devi (supra) is a Division Bench decision of Calcutta High Court. The Court considered the scope of review and a situation when a matter should be remanded which is not at all an issue helpful for petitioner in the present case.
27.Ram Abatar Mahato (supra) is again a Division Bench judgment of Calcutta High Court. The Court took plea that a document which is a unilateral document is not admissible evidence as it would satisfy the definition of 'lease' under Act, 1882. The Court found that 'kabuliyat' a unilateral document was for a period of five years and, therefore, it was compulsorily registered under Section 17(1)(d) of Act, 1908. This is evident from para 4 of the judgment which says "in the present case, however, the kabuliyat executed by the lessee was unregistered and there-fore it does not come within the mischief of the third paragraph of Section 107. Accordingly it cannot be said that this kabuliyat is not a lease on the ground that it was not executed by both the lessor and the lessee. If it is a lease, it is a lease for a term exceeding one year because according to the recital which I have already quoted the lessee was taking settlement for a period of five years. It was, therefore, compulsorily registrable under Section 17(1)(d) of the Indian Registration Act . . . . . ."
22. The aforesaid dictum makes it clear that for the kind of document up for consideration before this Court, registration was not at all compulsory in U.P., since it creates tenancy rights on month to month basis and not for a period of more than 11 months or for any specific period of 11 months. In view thereof the very argument that unregistered document was inadmissible in evidence, has to be rejected as such.
23. So far as question of non-payment of rent and consequences, is concerned, it is admitted position that no rent has been paid by petitioners and therefore, the concurrent findings recorded by the courts below holding that the petitioners liable to eviction from suit property, warrants no interference.
24. The writ petition lacks merit and is accordingly dismissed with costs of Rs. 5, 000/-.
Order Date :- 17.7.2014 Arun K. Singh Court No. - 34 Case :- WRIT - A No. - 27440 of 1993 Petitioner :- Smt. Tahira Begum And Other Respondent :- The Xth A.D.J. And Other Counsel for Petitioner :- R.B.D. Mishra,A.K.Singh,Salil Kumar Rai Counsel for Respondent :- S.C.,M.A.Qadeer Hon'ble Sudhir Agarwal,J.
Dismissed with costs of Rs.5000/-. For details see my judgment of date passed on separate sheets of paper (13 in number).
Order Date :- 17.7.2014 Arun K. Singh