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TMI Blog1973 (12) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... ocument executed by the Raja and plaintiff-respondent No. 1 was registered on April 11, 1958. Subsequently the Raja by his unilateral act purported to cancel this lease by another registered document dated 18-7-1958. The plaintiff Ram Das therefore filed a suit on 1-10-1958 alleging that he was the lessee of this property, namely, the right to collect market dues under the registered lease dated 20-2-1958 for a period of three years beginning with 1-10-1958 and that Smt. Dropadi had no right to remain in possession of the property from 1-10-1958. He challenged the deed dated 18-7-1958 executed by the Raja on the ground that he was not competent to cancel the previous lease by this unilateral document. The plaintiff therefore prayed for possession over the property. Plaintiff No. 1 joined with him two other persons, AH Ataqie Beg and Jwala Prasad, respondents Nos. 2 and 3, as co-plaintiffs with the allegation that subsequently he had taken these persons also as partners with him for a period of one year in this business. 2. During the pendency of that suit a Receiver was appointed who took possession over the disputed property, namely, the right to collect market dues in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 69(2) of the Indian Partnership Act on account of the partnership not being registered was also repelled on the ground that at the time the Raja had contracted with Ram Das there was no partnership and Ram Das entered into this contract as a principal and not on behalf of any partnership. As such Section 69(2) had no application to the case. On these findings the learned Civil Judge passed a decree in favour of Ram Das alone and that decree was to the effect that the money deposited in court by the Receiver shall be paid to him. 5. Feeling aggrieved by this decree defendant No. 1 Smt. Dropadi has filed this appeal. The learned counsel for the appellant argued that the property in question, viz., the right to collect market dues of the bi-weekly cattle market held on the land of the Raja was not an immovable property which could be subject to transfer by means of a lease. The Transfer of Property Act does not contain any positive definition of immovable property. In Section 3 it has been provided that immovable property does not include standing timber, growing crops or grass. This definition however does not affirmatively state what shall be regarded as immovable property. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es all the essential ingredients of a lease as defined in Section 105 of the Transfer of Property Act. Even otherwise if we scrutinise this transaction in the light of the tests laid down by the Supreme Court in Associated Hotels of India v. R.N. Kapoor (AIR 1959 SC 1262) and the Madras High Court in T.S. A Hamid v. S.A. Temple, AIR 1972 Mad 372 following the aforesaid Supreme Court decision, it has to be held as a lease and not a licence. During the continuance of the lease the transferee was to have exclusive possession over the property leased out, namely, the right to collect the market dues. During that period the lessor or any other person claiming through him could not collect those dues or share in their collection. This circumstance also clearly proves the nature of the transaction to be a lease and not a licence. The lease was for a period of three years commencing on 1-10-1958 and validly created by a registered instrument executed by the lessor and the lessee. It could not therefore be revoked unilaterally by the lessor under the document dated 18-7-1938. 7. The learned counsel for the appellant then argued that in view of the lease in favour of the defendant-appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executed in this case renewing the lease in favour of the defendant appellant for a period of one year beginning with 1-10-1958. The alleged oral agreement was not accompanied by delivery of possession because there was no occasion for it. This delivery of possession for the fresh period could be made only on 1-10-1958, but on that date the plaintiff had already filed his suit and the rights of the parties have now to be determined as existing on that date. Before that date the Raja had already given a lease of this property to Ram Das by means of a registered document which was to take effect from 1-10-1958. The lease relied on by the defendant-appellant not being created by a registered instrument, no constructive notice of it can be imputed to the plaintiff Ram Das. It was therefore necessary for the defendant appellant not only to prove that such a lease had been made in her favour prior to the registered lease in favour of the plaintiff, but that the plaintiff had also knowledge about it on 18-2-1958 when he obtained a registered lease from the Raja. There is no such evidence on record. Hence the defendant-appellant does not acquire any right as a lessee after 30-9-1958 as aga ..... X X X X Extracts X X X X X X X X Extracts X X X X
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