Appellant-Ved Prakash has preferred the Second Appeal against the judgement and decree dated 28.1.2016 passed by learned Additional District Judge (Special Judge Ante Corruption Act), Court No. 5, Gorakhpur in Civil Appeal No. 32 of 2013, Kanhaiya Lal Vs. Ved Prakash by which the learned Appellate Court has set asisde the judgement and decree dated 13.8.2013 passed by learned Additional Civil Judge, Senior Division, Court No. 12, Gorakhpur in Original Suit No. 945 of 2001 and decreed the suit filed by plaintiff-respondent.
Following substantial question of law was framed in the present appeal:-
"Whether basis of Original Suit, namely, the unregistered tenancy/lease deed dated 29.4.2001, was inadmissible in evidence and the judgement of the first appellate court relying on it is erroneous and perverse, if so, its effect?"
I have heard learned counsel for the appellant and respondent, at length.
So far as the factual matrix of the case is concerned, it is admitted from the both of the sides that Achhey Lal, Bachha Lal and Kanhaiya Lal were tenants of respondent's three shops. As the shops were in dilapidated condition, it was agreed between landlord-Ved Prakash, Kanhaiya Lal and other two tenants, namely, Achhey Lal and Bachha Lal that they will vacate the dilapidated shops and landlord will construct there new shops and after construction, its possession will be handed over to the tenants on the same place at where their earlier shops were situated. For the cost of construction Rs. 30,000/- each was to be provided by the each of the tenants to the landlord. In this regard, an agreement was executed between the landlord and tenants on 29.4.2001 and all the terms and conditions were stipulated in the above agreement. It was also agreed in the agreement that construction will be completed by 30th June, 2001. On 27.8.2001, appellant-defendant, Ved Prakash issued notice to tenants, Achhey Lal, Bacha Lal and Kanhaiya Lal, in which, he informed the tenants that they have failed to provide him Rs. One lakh fifty thousand each for the completion of the construction of the shops. So landlord has taken money from other person and has given the shop to the other person.
Plaintiff-Kanhaiya Lal filed Original Suit No. 945 of 2001 against the defendant-Ved Prakash in the Court of Civil Judge (Senior Division), Gorakhpur for giving the possession of the shop in question to the plaintiff as per memorandum of tenancy dated 29.4.2001. In the above suit, defendant filed its written statement and contested the case. Learned trial court vide judgement dated 13.8.2008 dismissed the suit. Plaintiff assailed the judgement of the trial court by preferring the Appeal No. 32 of 2013 before the learned District Judge, Gorakhpur. Appeal was transferred to the learned Additional District Judge, Court No.-5, Gorakhpur. Learned first appellate court vide judgement dated 28.1.2016 has allowed the appeal and set asided the judgement of the learned trial court dated 13.8.2013 and decreed the suit. Appellate Court judgement has been challenged before this Court in the form of Second Appeal in which substantial question of law has been framed as indicated above.
In fact, neither the trial court nor the first appellate court has adverted to this issue whether the agreement dated 29.4.2001 being the unregistered document can be read in evidence. Both the courts below have taken into consideration the above agreement and have given their finding upon interpreting its terms. Basically, an agreement by which rights are created in immovable property is required to be registered under Section 17 of the Registration Act and in case, it is not registered then it cannot be read in evidence as per Section 49 of the Indian Registration Act.
Learned counsel for the respondent submitted that it was admitted from both the sides that an agreement with terms and conditions mentioned in it, was executed between the parties, so it is admitted to both the sides. So question of its not registered and not admissible in evidence, does not arise. This argument of learned counsel for the respondent is not worth credence.
Learned counsel for the respondent has also relied upon 1932 Law Suit (P.C.) 45, Privy Council (From Rangoon) (F.B.) Official Liquidator of M E Moola Sons Ltd Vs. Perin R Burjorjee. In the cited case law, unregistered agreement was not affecting any immovable property. In the present case unregistered agreement is affecting the immovable property i.e. shops. So learned counsel for the respondent will not get any benefit with the above case law of the Privy Council.
Learned counsel for the appellant has cited case law reported in 2008 (72)ALR 638 SC, M/s. K.B. Saha and Sons Pvt. Ltd. Vs. Development Consultant Ltd. It has been held in the above case law that document if inadmissible in evidence for want of registration, none of its terms can be admitted in evidence. To use a document for the purpose of proving an important clause would not be using it as a collateral purpose.
So both the courts below have fallen in error in relying on the agreement dated 29.4.2001 and deciding the case on its basis. Agreement is unregistered. So plaintiff cannot base its case upon this unregistered agreement. Consequently, appellate court committed illegality in decreeing the suit on the basis of the misinterpretation of the clauses of agreement which could not be read in evidence at all.
In the light of the above, this Court answers the substantial question of law in this way that unregistered tenancy/lease deed dated 29.4.2001 which was basis of the original suit was inadmissible in evidence and the judgement of the first appellate court relying on it, is erroneous and perverse and is liable to be set asided.
Appeal is, accordingly, allowed. However, plaintiff will get back his Rs. 30,000/-with 6% of interest from the date of suit till payment is made from defendant on the basis of theory of undue enrichment.
Order Date :- 25.7.2016 AS