9911796707
TMI Blog1977 (9) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... y the first respondent. The property in dispute consists of land measuring, 11 bighas 17 kathas and 17 sq. ft. with structures thereon, being premises No. 1, Babu Ram Ghosh Road, Calcutta, previously numbered as premises Nos. 2, 3 and 4, Babu Ram Ghosh Road. Earlier, in 1952 the predecessors-in-interest of the first respondent had brought a suit for ejectment of the lessees of the property impleading the appellant, a private limited company who were the sub-lessees, also as a defendant. That suit was decreed against all the defendants some time in 1954. The appellant applied for review of the judgment decreeing the suit. The review petition having been dismissed, the appellant moved the High Court in revision. The revision case was ultimate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d acceptance of rent a monthly tenancy had been created in their favour which was continuing even after the expiry of the said period. The trial court found that to be effective as a lease for sixteen years the petition of compromise required registration, and this not having been done it could not create any interest in favour of the appellant in the premises though they were entitled to protect their possession for a period of sixteen years under section 53A or the Transfer of Property Act. It was further held that payment and acceptance of rent made in terms of the unregistered compromise petition did not give rise to a right of tenancy and on the expiry of the said period they had no-protection against eviction. The trial court accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affect the immovable property to which it relates and could not be received as evidence of any transaction affecting the property though it was admissible as evidence of part performance of a contract for the purposes of section 53A of the Transfer of Property ,Act or as evidence of any collateral transaction not required to be effected by registered instrument. In order to be entitled to the protection of section 53A, the transferee must perform or must be willing to perform his part of the contract. In this case one of the terms in the petition of compromise was that the appellant would pay a monthly rent of ₹ 1000/- and there is no dispute that this sum was paid every month for the period of sixteen years. It has not been found o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Courts which are either based on an incorrect reading of Ram Kumar s case or in which the contention Mr. Sen has raised here did not arise for consideration. If Mr. Sen s contention were correct, then it was unnecessary to enact section 53A. Mr. Sen has also referred to the law in England according to which a tenancy at will is implied when a person enters into possession under a void lease. But part performance in this country does not give rise to an equity as in England but to a statutory right which is comparatively a restricted right in that it is, available only as a defence. It has, been held that section 53A is only a partial importation in the statute law of India of the English doctrine of part performance. see Sheth Manekla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s willingness to perform their part of the contract. This does not mean however that there cannot be a relationship of landlord and tenant in any case where the transferee has taken possession of the property under a void lease or in part performance of a contract and is entitled to protection under section 53A of the Transfer of Property Act. Such a view would be incorrect and encourage attempts to circumbet the protection of the Rent Acts given to the tenants. Whether the relationship of landlord and tenant exists between the parties depends on whether the parties intended to create a tenancy, and the intention has to be gathered from the facts and circumstances of the case. It is possible to find on the facts of a given case that paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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