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TMI Blog1951 (7) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of law arose out of the issues joined between the parties: 1. whether the lease Ex. 1 is a lease, or is only a bid-sheet; 2. Whether the lease is one which is compulsorily registrable; and 3. Whether the plaintiff is entitled to get any relief under the lease if it is held that the same is invalid for want of registration. 4. It may be true that there was an auction and the defendants were the highest bidders for the lease. But we are convinced on reading Ex. 1 that it is a lease and also it purports to be so. It embodies all the terms of the lease and is executed both by the lessor and lessee. The real contention, on this head, is that if this document is not a lease-deed, can the lease, alleged in this case, be said to have been created by an oral agreement and can such a lease be made orally as it is for one year only. On reference to Rule 107, T.P. Act, it is clear that all leases of immovable properties other than those from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made either by a registered instrument or by oral agreement accompanied by delivery of possession. According to Mr. B. N. Das, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Pratap Singh v. Gourachandra', AIR (24) 1937 Mad 656. The principles laid down there get full support from the decisions reported in 'Mangalswami v. Subbia Pillai', 34 Mad 64 and M. E. Moola Sons Ltd. v. Official Assignee', AIR (23) 193(3 PC 230. Their Lordships of the Privy Council have quoted with approval the statement of law pronounced by the learned Judges who decided the case reported in 'Mangalasamy v. Subbiah Pillay', 34 Mad 64. On that very decision AIR (24) 1937 Mad 856, Mr. Justice Pandrang Row has held after a very lucid and forceful discussion that the right to collect rent from the tenants constitutes premises which are capable of use and occupation. This meets the second branch of Mr. H. Mohapatra's contention as set forth above. 6. The next question that pertinently arises is whether after having based his cause of action on that invalid lease, the plaintiff is entitled to any relief. Two answers are admissible: one is that the plaintiff is entitled to be compensated by payment of damages by the defendants for use and occupation of the immovable properties concerned. Now this relief will require a finding as to what is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person contracts to transfer for consideration by writing which is not registered and the transferee after performance of his part of the contract has come into possession, the transferor is prevented from taking advantage of the incompreteness in the document and being allowed to take back possession of the property on ejecting the transferee. It was, however, one of the conditions precedent for application of the provision under Section 53A that the transferee must have paid the consideration. The case of a lessor and a lessee is a case which very appropriately is taken into S.R.Ac. It more or less involves specific performance of the contract, Section 53A affords protection to one who can invoke part performance to his aid, that is, the transferee-in-possession, while Section 27A deals with enforcement of contract by specific performance. It is not disputed at the Bar that the present suit for recovery of the amount, agreed to be paid under the lease, is for enforcement of contract. Mr. Mohapatra, in disputing the application of Section 27A, S. R. Act, also raises the plea that this is a contract of lease of immovable property but not a contract to lease immovable property which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f possession was not by way of part performance of the contract contained in the alleged lease-deed (Ex. 1). Though not in this connexion but in another connexion, this question also was agitated in the Court of Appeal below. It has to be noted that the judgment of the learned Subordinate Judge in this respect is unsatisfactory and we hare, therefore, to fall back upon the finding of the learned Munsif which has not been displaced by the learned Subordinate Judge. The point urged was that whether there was delivery of possession in pursuance of the agreement, that being the contention of the plaintiff in order to make out a case of completed lease under Section 107, T.P. Act. The learned Munsif rejected the case of oral agreement accompanied with delivery of possession but held that the delivery of possession was in pursuance of the written agreement. It would be profitable to quote a passage from his judgment which relates to this aspect of the case: Admittedly in this case there is no registered instrument of lease......... On the other hand it is clear from the evidence let in on the plaintiff's side that the delivery of possession granted to the Mustajars ..... X X X X Extracts X X X X X X X X Extracts X X X X
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