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TMI Blog2000 (7) TMI 970X X X X Extracts X X X X X X X X Extracts X X X X ..... ildings (Lease and Rent Control) Act 1965 (for short the Rent Act). Facts, mostly undisputed, are the following: The building which is the subject matter of this litigation is described as a shed which originally belonged to a family the senior member of which inducted the appellant in possession thereof as per a lease deed dated 4.1.1974 which was ostensibly meant for a period of five years. The monthly rent of the building has been fixed at ₹ 140/-. Appellant paid rent of the building at the said rate till October 1974. Sometime during this period ownership of the building happened to be allotted to a female member of the family (Devaki) as per a partition effected between its members. Thereafter rent of the building was paid by the appellant to the aforesaid Devaki. Subsequently ownership of the building was transferred by Devaki to the respondent who filed the suit as plaintiff (for the sake of convenience respondent can be referred to as the plaintiff). The trial court decreed the suit by repelling the contention of the appellant that the suit was not maintainable as he is protected from eviction under the provisions of the Rent Act. The trial court found that the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inable.. I am therefore constrained to set aside the finding of the lower appellate court that the first defendant is a tenant protected by the Kerala Buildings (Lease and Rent Control) Act. I hold that the first defendant has not proved that independent of the void lease, a relationship of landlord and tenant has come into existence between the parties. In view of this finding, the plaintiffs will be entitled to a decree for recovery of possession of the plaint schedule property. In this appeal by special leave a bench of two judges heard this matter and after noticing a conflict of opinions expressed by benches of equal strength it was felt that this appeal should be decided by a larger bench. In spite of the chequered career of the litigation the only question which has now bogged down to be decided is whether the suit building is held by the appellant under a lease or not. The word tenant is defined in Section 2(6) of the Rent Act as any person by whom or on whose account rent is payable for a building. Landlord is defined as including the person who is receiving or is entitled to receive the rent of a building. Now the definition of building must be booked into. In claus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent required by Section 17 [or by any provision of the TP Act, 1882,] to be registered shall (a) affect any immovable property comprised therein, or (b) confer any power to adopt, or (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered. [Provided that an unregistered document affecting immovable property and required by this Act, or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of section 53-A of the Transfer of Property Act, 1882, or as evidence of any collateral transaction not required to be effected by registered instrument.] No endeavour was made by the counsel to obviate the said interdict with the help of the exemptions contained in the proviso. The resultant position is insurmountable that so far as the instrument of lease is concerned there is no scope for holding that appellant is a lessee by virtue of the said instrument. The court is disabled from using the instrument as evidence a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the purview of the second paragraph of Section 107 of the TP Act extracted above. From the pleadings of the parties there is no possibility for holding that the nature of possession of the appellant in respect of the building is anything other than as a lessee. Shri P.Krishnamoorthy learned Senior Counsel contended that a lease need not necessarily be the corollary of such a situation as possession of the appellant could as well be permissive. We are unable to agree with the submission on the fact situation of this case that the appellants possession of the building can be one of mere permissive nature without any right or liabilities attached to it. When it is admitted that legal possession of the building has been transferred to the appellant there is no scope for countenancing even a case of licence. A transfer of right in the building for enjoyment, of which the consideration of payment of monthly rent has been fixed, can reasonably be presumed. Since the lease could not fall within the first paragraph of Section 107 it could not have been for a period exceeding one year. The further presumption is that the lease would fall within the ambit of residuary second paragraph of S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noted that the High Court has found in agreement with the finding of the subordinate courts that payment of rent and acceptance of the same did not create any tenancy. The said fact finding was not disturbed by this court in that particular case. However, their lordships observed therein that 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 facts of a given case that payments made by transferee in possession were really not in terms of the contract but independent of it and this might justify an inference of tenancy in his favour. The question is ultimately one of fact. In Biswabani Pvt. Ltd. vs. Santosh Kumar Dutta: (1980) 1 SCR 650 a two judge bench of this court found that though a second lease-deed executed between the parties (on the expiry of the period mentioned in the first lease-deed) is void for want of registration, the tenant would continue to be protected under the relevant Rent Control Act because on the expiry of the period of first lease the tenant had acquired the right ..... 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