9911796707
TMI Blog2008 (5) TMI 708X X X X Extracts X X X X X X X X Extracts X X X X ..... the Registration Act, an unregistered document can also be admitted into evidence for a collateral fact/collateral purpose. In the case of Bajaj Auto Limited vs. Behari Lal Kohli [ 1989 (8) TMI 344 - SUPREME COURT] , this Court observed that if a document is inadmissible for non-registration, all its terms are inadmissible including the one dealing with landlord's permission to his tenant to sub-let. It was also held in that decision that if a decree purporting to create a lease is inadmissible in evidence for want of registration, none of the terms of the lease can be admitted in evidence and that to use a document for the purpose of proving an important clause in the lease is not using it as a collateral purpose. In our view, the clause 9 in the lease agreement in question cannot be called a collateral purpose. As noted earlier, it is the case of the appellant that the suit premises was let out only for the particular named officer of the respondent and accordingly, after the same was vacated by the said officer, the respondent was not entitled to allot it to any other employee and was therefore, liable to be evicted which, in our view, was an important term forming pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondly, we are of the view that although the suit premises was leased out exclusively for the named officer of the respondent, the fact that the respondent sought to use it for some other officer would not constitute Change of User within the meaning of Section 108(o) of the Transfer of Property Act and, therefore, the respondent cannot be evicted for violation of the provisions of Section 108(o) of the Transfer of Property Act. W do not find any merit in this appeal and the appeal is therefore dismissed - Since the appeals have been dismissed, all the interlocutory applications, if any, now pending before this Court have become infructuous and accordingly, they are disposed of as infructuous. - MATHUR, A.K. AND CHATTERJEE, TARUN, JJ. JUDGMENT TARUN CHATTERJEE, J. 1. These two appeals are directed against the common final judgment and order dated 18th of May, 2001 of the High Court of Calcutta passed in F.A. Nos. 39-40 of 1999 affirming the judgment and decree dated 11th of November, 1998 passed by the Asstt. District Judge, 9th Court at Alipore, South 24 Parganas whereby the two suits namely, Title Suit No 19/92 and 39/92 filed at the instance of the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y other employee after the same was vacated by Mr. Keshab Das and members of his family. By an interim order passed on 13th of March, 1992 in the aforesaid suit, the Assistant District Judge, 9th Court at Alipore had passed an order of injunction restraining the respondent from allowing any other person except Mr. Das to occupy the suit premises. This interim order was made final on 2nd of September, 1992. On 18th of March, 1995, a notice under Section 13(6) of the West Bengal Premises Tenancy Act, 1956 (in short the Act ) was served on the respondent asking them to vacate the suit premises and on failure of the respondent to vacate the suit premises as desired in the notice, another suit was filed by the appellant being Title Suit No. 39/95 praying for ejectment of the respondent from the suit premises. The aforesaid suit was brought by the appellant with similar allegations as contained in Title Suit No. 19/92 and it was alleged, inter alia, that although the respondent was bound to vacate the suit premises after Mr. Das had vacated the same, yet the respondent had not vacated the suit premises and, therefore, the appellant was constrained to file the aforesaid suit for evict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant and examined the judgment of the High Court as well as of the trial court and other materials on record. We keep it on record that none had appeared for the respondent despite our best efforts to bring the respondent to appear before us and contest the appeals. We also keep it on record that in view of the interim order granted by the High Court as well as by the trial Court to the extent that the respondent cannot be allowed to bring any officer other than Mr. Keshab Das to occupy the suit premises, the respondent has kept the suit premises under lock and key without any occupation of any officer in the same. 6. On a perusal of the pleadings of the parties, it is pellucid that the case of the appellant in both the suits was based on the memorandum of lease agreement dated 30th of March, 1976. In this view of the matter, it is expedient to reproduce some of the relevant Clauses in the Tenancy Agreement between the parties before we proceed further with this appeal. Accordingly, the relevant portion of the memorandum dated 30th of March, 1976 is reproduced as under: - THIS MEMORANDUM OF AGREEMENT made this the 30th day of March, one thousand nine hundred and seve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pation of the said Chief Engineer (Cement)and his family members on First day of April, 1976 Clause-9 of the Agreement runs as follows :- That the party of the second part hereof agrees and undertakes that the tenancy will be used and occupied by its present officer Mr. Keshab Das and members of his family for residential purpose only and for no other purposes. If the tenant intends to use the tenancy for occupation of any other officer or employees, it will seek for written consent of the landlord and the landlord shall have the option to agree or disagree to give such consent . Clause 20 of the said agreement is as follows :- That the tenant shall vacate and deliver vacant Khas possession of the demised premises unto the landlord on termination or determination of the tenancy with whole of the fittings and effects in as sound, perfect and clear condition as they were at the commencement of the tenancy excepting natural wear and tear . 7. In view of the pleadings of the parties, the following issues were framed by the trial court in Title Suit No.19 of 1992: - 1.Has the plaintiff any cause of action for the suit ? 2.Is the suit maintainable in its present f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not admissible in evidence. VII) The lease agreement, being an unregistered document, could not be used to establish that the suit premises was let out to the respondent only for the purpose of occupation of its employee Mr. Keshab Das and the members of his family for their residential purpose and for no other purpose. VIII) From the agreement, which could be seen as a collateral evidence, the purpose of the tenancy was clearly for residence and, therefore, the question of violation of Clause (o) of Section 108 of the Transfer of Property Act by the respondent in the facts and circumstances of the case could not arise at all. 10. On the aforesaid findings arrived at by the Trial Court, both the suits were dismissed and the High Court on the same lines had affirmed the findings of the trial court and held that no ground was made out by the appellant to evict the respondent from the suit premises. 11. Mr. Somnath Mukherjee, the learned counsel appearing on behalf of the appellant submitted that the lease agreement (Ext.4) creating tenancy from month to month in respect of the suit premises was not compulsorily registerable under Section 107 of the Transfer of Property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three months after the demise of the original lessee. In other words, the right has been made specifically not heritable. 12. In order to appreciate the submissions made by Mr. Mukherjee, the learned counsel appearing on behalf of the appellant, it would be necessary for us to look into Section 107 of the Transfer of Property Act which would be, in our view, material for rendering proper decision in this appeal. Accordingly, Section 107 of the Transfer of Property Act may be quoted which runs as under : 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only for one or more grounds as provided in that Act, the parties had the freedom to enter into an agreement to take their case out of the provisions of that Section i.e. the parties were at liberty to contract out of that section. Before we deal with the submission of Mr. Mukherjee, learned counsel appearing on behalf of the appellant, on this question, we may look into the findings arrived at by the High Court on this question. The High Court in the impugned judgment has come to a conclusion that the decision in the case of Smt. Juthika Mulick's case (Supra) cannot be of any benefit to the appellant on the ground that in Smt.Juthika Mulick's case, the respondent had leased out the premises in question in favour of the lessee under a registered deed of sale whereas in the instant case, the lease deed was not registered. The High Court has observed that the lease agreement between the parties was in effect an agreement for lease of the suit premises and was unregistered. Relying on Section 49 of the Registration Act, the High Court observed that a document purporting to be a lease and required to be registered under Section 107 of the Transfer of Property Act is not admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as placed by the appellant, the fact was that the predecessor-in-interest of the respondents in that appeal leased out the premises in question in favour of one Lal Bihari Mulick in a registered deed of lease at a monthly rental of ₹ 160/- and the lease deed contained a covenant that the lease was for the lifetime of the lessee and his heirs, executors, administrators, representatives and the heirs must yield up and deliver quiet, peaceful and vacant possession of the demised premises within three months from the date of death of the lessee unconditionally and without any objection whatsoever. It was further stipulated that they shall have no right to handover the demised premises after the said period under any circumstances. The lessee died on 16th of December, 1970 and his heirs did not deliver vacant possession in favour of the lessors or their successors in interest and this necessitated filing of the suit for eviction of the defendants. In that decision, the main defence raised in the written statement was that the original lessee Lal Bihari Mulick, having died on 16th of December, 1970, the registered lease dated 11th of July, 1966 shall fall under the category of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aying that the deed created or declared or assigned or limited or extinguish the right to immovable property ..........term collateral purpose would not permit the party to establish any of these acts from the deed. 19. In the case of Bajaj Auto Limited vs. Behari Lal Kohli [AIR 1989 SC 1806] , this Court observed that if a document is inadmissible for non-registration, all its terms are inadmissible including the one dealing with landlord's permission to his tenant to sub-let. It was also held in that decision that if a decree purporting to create a lease is inadmissible in evidence for want of registration, none of the terms of the lease can be admitted in evidence and that to use a document for the purpose of proving an important clause in the lease is not using it as a collateral purpose. Again this court in Rai Chand Jain Vs. Chandra Kanta Khosla [AIR 1991 SC 747] reiterated the above and observed in paragraph 10 as under : - .......the lease deed Ex. P1 dated 19th May, 1978 executed both by the appellant and the respondent i.e. the landlady and the tenant, Rai Chand Jain, though unregistered can be considered for collateral purposes and as such the findings of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immoveable property of the value of one hundred rupees and upwards. 5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose. 22. In our view, the particular clause in the lease agreement in question cannot be called a collateral purpose. As noted earlier, it is the case of the appellant that the suit premises was let out only for the particular named officer of the respondent and accordingly, after the same was vacated by the said officer, the respondent was not entitled to allot it to any other employee and was therefore, liable to be evicted which, in our view, was an important term forming part of the lease agreement. Therefore, such a Clause, namely, Clause 9 of the Lease Agreement in this case, cannot be looked into even for collateral purposes to come to a conclusion that the respondent was liable to be evicted because of violation of Clause 9 of the Lease Agreement. That being the posi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinary prudence would use his property and not to use it for a purpose different to that for which it was leased. It is true that under Section 108(o) of the Transfer of Property Act, `use of the property for the purpose other than that for which it was leased i.e. `Change of User' is not permitted. Therefore, we have to consider whether in the backdrop of the facts of this case, violation of Clause 9 of the lease agreement, even if it is held that it can be looked into for collateral purposes, would be `Change of User' or not. In other words, we have to find whether the expression `change of user' would cover a situation wherein the property is let out for a particular named officer and for none else and despite this condition, the same is given to some one else, or would it cover and be limited to the cases where property is leased out for a residential or non- residential purpose or for a particular business and despite such express conditions, the property is used for the purpose other than the specified. We are of the view that letting out or leasing out the property for a particular named officer cannot be the `purpose' of letting. The purpose of letting o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... findings made hereinabove on that aspect, the appellant is not entitled to a decree of eviction under the Act. 28. In view of our discussions made hereinabove, we are, therefore, of the view that Clause 9 of the Agreement, which requires the respondent to use the suit premises only for its particular named officer, cannot be looked into even for collateral purposes and that the decision of this court in Smt. Juthika Mullick's case [supra] would not be of any help to the appellant because in that case, the lease deed was registered. 29.Secondly, we are of the view that although the suit premises was leased out exclusively for the named officer of the respondent, the fact that the respondent sought to use it for some other officer would not constitute Change of User within the meaning of Section 108(o) of the Transfer of Property Act and, therefore, the respondent cannot be evicted for violation of the provisions of Section 108(o) of the Transfer of Property Act. 30. No other point was raised by the learned counsel for the appellant and accordingly, we do not find any merit in this appeal and the appeal is therefore dismissed. 31. Since the suits have been dismisse ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
