Second appeal over eviction of a shop tenant on grounds of rent default and expiry of a three-year unregistered lease. Upholding concurrent findings, the High Court held the unregistered deed usable for collateral purposes, admissions bound the tenant, and dismissed the appeal with costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 354 of 2017
Md. Abdul Wahab, Son of Late Md. Murshid Ali, Proprietor of M/s Lovely Tailor, Vaishali Market, Shop No. 7, P.O. & P.S. – Chas, District – Bokaro.
… Defendant / Appellant / Appellant Versus
… Plaintiffs/Respondents/Respondents
------- CORAM: HON'BLE MR. JUSTICE PRADEEP KUMAR SRIVASTAVA
For the Appellant : Mr. Sanjeev Thakur, Advocate. For the Respondents : Mr. Rohit Ranjan Sinha, Advocate.
------ J U D G MENT
C.A.V. On : 11.12.2023 Pronounced On : 7th March, 2024
1. The present appeal has been preferred, being aggrieved and dissatisfied with the judgment dated 25.04.2017 and decree signed and sealed on 09.05.2017 passed by learned Principal District Judge, Bokaro in Title Appeal No. 11/2006, whereby and whereunder the learned Principal District Judge has dismissed the said appeal, which was preferred against the judgment dated 24.03.2006 and decree dated 15.04.2006 passed by the learned Munsif, Bokaro in Title (Eviction) Suit No. 09/2002, which was decreed by the learned trial court.
2. The factual matrix of the case giving rise to this appeal in a narrow compass is that the suit Schedule-A property consisting of shop was let out by the original plaintiff-Birendra
2
S.A. No. 354/2017
Bahadur Singh on 01.03.2001 to the defendant for a period of three years according to English Calendar month and the tenancy started from 1st day of March, 2001 at the monthly rent of Rs. 500/- per month excluding electricity and other miscellaneous charges. The lease agreement was executed on 07.04.2001, but it was not registered one and came w.e.f. 01.03.2001. As per terms of the lease agreement, the defendant / tenant will be liable to be evicted amongst other following grounds:-
(c) For the condition of building being materially deteriorated because of act of waste or negligence or default of the lessee.
3. It is alleged by the plaintiff that the defendant has violated the terms and conditions of the lease agreement, as he has made default in payment of monthly rent of the suit premises for more than two months w.e.f. July, 2002 to November, 2002. Inspite of several requests to the defendant to pay the arrears of rent, he did not pay the same, as such, rendering himself liable for eviction from the suit premises. During pendency of the suit a further ground for eviction was also added in the plaint regarding the expiry of term of lease agreement, which was only for a period of three years starting from 1st March, 2001 to 29th February, 2004. The plaintiff has also claimed arrears of rent of the suit premises from July, 2002 to November, 2002 i.e. for five months @ Rs. 500/- per month, total amounting to Rs. 2,500/- from the
3
S.A. No. 354/2017
defendant when the defendant declined to execute the request of plaintiff for payment of arrears of rent and vacation of the suit premises then the suit was instituted.
4. The defendant appeared and filed his written statement raising several legal objections regarding maintainability of suit, cause of action, barred by limitation, principle of waiver, estoppel, acquiescence etc. admitting the relationship of landlord and tenant with the plaintiff and has stated that the lease deed was actually executed on 26.08.2002 between the parties and the said lease agreement was signed by the plaintiff and defendant with date on 26.08.2002. The defendant has all along paid the monthly rent @ Rs. 500/- per month and lastly the rent was paid on 05th January, 2003 against the rent for the month of December, 2002, but no rent receipt was issued by the plaintiff, therefore, defendant is not defaulter in payment of rent at any point of time. It is further stated that in the 1st week of February, 2003, when the defendant went to the plaintiff for tendering the rent of January, 2003, the plaintiff refused to accept the same and asked the defendant to enhance the monthly rent to Rs. 1000/- per month and also to pay security money of Rs. 50,000/-, which was not possible for the defendant and he expressed his inability either to enhance the rate of rent or to pay security money. Thereafter, the plaintiff advised to wait for some days and to decide the monthly rent and quantum of security money through negotiation. The defendant waited for amicable solution for next two weeks, but no settlement could be arrived at, then he became puzzled, as the plaintiff was neither ready to
4
S.A. No. 354/2017
receive the monthly rent from January, 2003 nor was fixing any date for any amicable settlement. Hence, defendant was left with no alternative, but to remit the monthly rent of January, 2003 and onwards through postal money order, which was also refused by the plaintiff. It has been emphatically stated by the defendant that the defendant was never defaulted in payment of monthly rent to the plaintiff, rather in order to extort high rent and security deposit illegally and for putting pressure upon the defendant, the plaintiff has instituted this case on false grounds, which is fit to be dismissed.
5. On the basis of pleading of parties, the learned trial court has settled following issued for adjudication:-
1. Whether the suit is maintainable?
2. Whether the plaintiff has got valid cause of action?
3. Whether the suit is barred by principles of waiver, estopple and acquiescence?
4. Whether the suit is barred by limitation?
5. Whether the defendant has defaulted in making payment of monthly rent of the suit premises to the plaintiff for two consecutive months?
6. Whether the plaintiff has violated the agreement of tenancy?
7. Whether the plaintiff is entitled to the relief or reliefs as claimed?
8. Whether the defendant is liable to be evicted from the suit premises on the basis of expiry of the period of lease agreement?
6. In order to substantiate his case, the plaintiff has examined altogether three witnesses namely, P.W.-1 Desh Raj Nanda, P.W.-Vikash Kumar and P.W.-3 Birendra Bahadur Singh (Plaintiff himself). Apart from oral testimony of witnesses, the
5
S.A. No. 354/2017
plaintiff has adduced documentary evidence i.e. Exhibit-1 – Tenancy Agreement dated 07.04.2001.
7. On the other hand, defendant has also examined this witnesses, D.W.-1 Md. Hanif, D.W.-2 Ayub Ansari, D.W.-3 Md. Hasmat, D.W.-4 Md. Ekram, D.W.-5 Hasan Imam Kundan & D.W.-6 Abdul Wahab (defendant himself). The defendant has also adduced following documentary evidence, postal money order receipts as Exhibit-A to A/12 and 13 money order return coupons marked as Exhibit-B to B/12.
8. The learned trial court before adverting to decide the issues involved in this case has stated at the outset the admitted facts:-
9. It is stated that the relationship of landlord and tenant between the original plaintiff and defendant is admitted. The quantum of rent of Rs. 500/- is also admitted.
10. There is main dispute about default in payment of rent and determination of lease due to efflux of time. Accordingly, the learned trial court considered the Issue Nos. 5 and 8 to be of vital importance touching the factual aspect of the case.
11. While deciding the Issue No. 5, the learned trial court apprise the oral evidence of plaintiff (P.W.-3) to the effect that upon receipt of rent, he used to issue rent receipt to all his tenants including P.W.-1 & P.W.-2 and the defendant, but he failed to produce the counterfoil of rent receipts.
6
S.A. No. 354/2017
12. The learned trial court rejected the plea of defendant that due to non-production of counterfoils of rent receipts, adverse presumption may be raised under Section 114 (g) of the Evidence Act against the plaintiff and taking a different view, it was opined that in case of default, it is not for the plaintiff / landlord to prove the default, rather the onus is on the defendant to prove that he has actually tendered the monthly rent of the leased property, for which, the allegation of default has been raised by the landlord. In this connection, the defendant has examined six witnesses and all the witnesses of defendant have consistently stated that defendant used to pay monthly rent of suit premises regularly to the plaintiff, including the rent of December, 2002, but none of the witnesses have stated that when the monthly rent of suit premises for the month of July 2002, August, 2002, September, 2002, October, 2002 and November, 2002 was paid by the defendant. The defendant has exhibited the documentary evidence of money order return coupons for the month of January, 2003 onwards. It was also found by the learned trial court that the tenancy agreement relied upon by the plaintiff, but not disputed by the defendant clearly shows that no advance rent was tendered, although the defendant disputed that the lease agreement was signed on 07.04.2001, but on 26.08.2001, but it is admitted that tenancy started from 01.03.2001. It was also noticed that if the plaintiff was not issuing any rent receipt after receipt of it since the inception of the tenancy i.e. March, 2001, why the defendant did not raise any demand or availed the remedy under Section 20
7
S.A. No. 354/2017
of the Bihar Building (Lease, Rent and Eviction) Control Act. In view of above reasons, the learned trial court arrived at conclusion that the defendant has failed to prove that he has actually paid the monthly rent of the suit premises for the period of July, 2002 to November, 2002, as such, made default in payment of rent and decided this issue i.e. Issue No. 5 in favour of plaintiff against the defendant.
13. As regards Issue No. 8, which arose due to amendment in plaint vide order dated 29.05.2004 incorporating Para-4(a) to the plaint, wherein taking a additional ground of eviction that the defendant is also liable to be evicted from the suit premises on the ground of expiry of lease period. In this regard, the learned trial court took notice of Exhibit-1 Tenancy Agreement dated 07.04.2001, which is admitted by both the parties. The Lease Agreement shows that tenancy was only for a period of three years started from 1st of March, 2001 to 29th February, 2004, as such, defendant is also liable to be evicted from the suit premises due to determination of terms of lease / efflux of time. The defendant has not filed any additional written statement to controvert the aforesaid facts, rather taking an oral plea during argument that Exhibit-1 is Tenancy Agreement created for more than one year, as such, it requires compulsory registration, but the same has not been registered in accordance with law, hence, it cannot be read into evidence except for collateral purpose. The learned trial court has also taken notices of principles of law laid down by Hon’ble Patna High Court, Ranchi Bench reported in 1989 PLJR 1162
8
S.A. No. 354/2017
(Rajendra Bahal Vs. Desh Raj Singh) , wherein it was held that “ if a lease is made for more than one year or even for one year by an instrument, it requires registration and as it was not done, it was not admissible in evidence .”
14. Considering the above principle of law, the learned trial court further recorded finding that in the instant case, there is specific pleading of the plaintiff in para-4(a) of the plaint that the lease period is only for the period of three years, as such commenced from 01.03.2002 to 29.02.2004, but the defendant in his written statement has not specifically denied the above pleading, rather in his cross-examination, he has also admitted that the agreement was for the period of three years and that three years has elapsed and thereafter the lease agreement has not been renewed and the defendant has not given notice for renewal of the lease agreement because of the dispute. It was also observed by the learned trial court that a plain reading of provisions of Section 11(i)(e) of the Bihar Building (Lease, Rent and Eviction) Control Act, it transpires that landlord can sought eviction of the tenant from suit property, if the tenancy is for the specified period and the said period has expired. Therefore, Issue No. 8 was also decided in favour of plaintiff and against the defendant.
15. Issue No. 6 was decided against the plaintiff, but Issue No. 1, 2, 3 & 4 were found to be ornamental in nature and decided in favour of plaintiff.
16. Accordingly, learned trial court while deciding the Issue
No. 7 has held that plaintiff has been able to prove the ground of
9
S.A. No. 354/2017
eviction under Section 11(1)(d) & (e) of the Bihar Building (Lease, Rent & Eviction) Control Act, 1982 and also findings recorded on Issue Nos. 1 to 4 and Issue Nos. 5 & 8, plaintiff is entitled for a decree of eviction against the defendant from the suit premises. Accordingly, decreed the suit of the plaintiff with direction to the defendant to vacate the suit premises and hand over the vacant possession of the same within 60 days from the date of the order, failing which the plaintiff will at liberty to get suit premises vacated from the defendant through the process of law.
17. The first appellate court dismissed the appeal concurring with the judgment and decree of the learned trial court passed in Title Eviction Appeal No. 11/2006 vide judgment and decree dated 08.12.2010, decree signed on 22.12.2010 respectively.
18. Against the said judgment and decree, S.A. No. 10 of 2011 was preferred before the Hon’ble Jharkhand High Court, which was remitted back for fresh disposal with following observation made at para-8 & 9.
Para-8:- Having heard the counsels and on-going through the judgments and decree of the lower appellate Court as well as the trial court, it is evidence that the lower appellate court has merely passed the judgment on the submissions without framing the points for determination as contemplated under Order XLI Rule 31 of the Code of Civil Procedure. The appellate court ought to have discussed the issues of default and expiry of lease for which the existence of lease is a sine-qua-non which has not been discussed or considered by the first appellate court. It is settled proposition of law that first appellate court is the final court of fact and law and the judgment of first appellate court must reflect conscious application of judicial mind by recording its findings founded on
10
S.A. No. 354/2017
reasoning on all issues pressed and raised by the parties. It is well settled that the appellate court must not merely concur with the trial court’s judgment rather it is the duty of the first appellate court to give reason for its decision. It is evident that the first appellate court has neither considered the evidence nor discussed the law and passed a cryptic judgment which is against the settled proposition of law giving rise to substantial question of law as the appellate court’s judgment is not based on the discussion of facts and law. Therefore, the judgment is set aside and the matter is remitted to the lower appellate court to determine the issues and pass a speaking and reasoned order with respect to Ext.-1 i.e. lease agreement exhibited by the parties and on point of default in payment of the rent. Since the suit is of the year 2002, the lower appellate court shall decide the appeal by May, 2017 positively by proceeding on a day-to-day basis after giving an opportunity of hearing to the parties and no unnecessary adjournment should be granted except in compelling circumstance. The defendant/ tenant shall deposit the arrear of rent in the court below which the plaintiff/ respondent is at liberty to withdraw. It is made clear that any observation made hereinabove shall not cause prejudice or adversely affect the cause of the parties.
Para-9:- In the result, the appeal is allowed with the aforesaid direction.”
19. On the basis of above observation and direction of the
Hon’ble High Court, the Title (Eviction) Appeal No. 11/2006 was reheard by the then Principal District Judge, Bokaro, who has re-casted issues for adjudication of this appeal, which are as under:-
11
S.A. No. 354/2017
20. The learned first appellate court again heard the argument of both the parties and appreciated the oral as well as documentary evidence adduced by the parties and discussed at length. 21. As regards Issue No. I re-casted by learned appellate court after detailed discussion and appreciation of oral as well as documentary evidence adduced by plaintiff and defendant and considering the terms and conditions of the Lease Agreement (Exhibit-1) and relying upon the reported judgment rendered in in Sadanand Das Vs. Md. Hussain reported in 1986 PLJR 46 (SC) , in the case of Saroj Devi Vs. Tarakpad Rai reported in 2002 (1) JLJR 614 , in the case of Pawan Lal Soni Vs. Sushila Debi Modi reported in 2004 (3) JLJR 389 and in the case of Ashok Pada Sen Vs. Nabi Rasool & Others reported 2014 (1) JLJR 288 , wherein it has been held that if the tenant has committed default in payment of rent for more than two months then the tenant is liable for eviction from the suit premises. It is held by the learned appellate court that relationship of landlord and tenant is admitted by the parties. It is also evident that the defendant / appellant has not paid rent from July, 2002 to November, 2002. However, the eviction suit for committing the default can be maintainable only for the period commence from July, 2002 to October, 2002 i.e. consecutive period of four months and not for the months of November, 2022 as rent of November, 2002 will be payable by 31.12.2002 as per the provisions of Section 11(1)(d) of Jharkhand Building (Lease, Rent and Eviction) Control Act, 2003 whereas Eviction Suit No. 09 of 2002 was filed on 11.12.2002.
12
S.A. No. 354/2017
Therefore, it is evident that defendant / appellant has committed default in payment of rent from the month of July, 2002 to October, 2002 at the time of filing of the eviction suit.
22. It was further observed that it is well settled law that if the tenant commits default in payment of rent for more than two consecutive months then the tenant will be liable for eviction on the ground of default in payment of rent. Accordingly, Issue No. I was decided in favour of the plaintiffs / respondents and against the defendant / appellant.
23. Issue Nos. II & III recasted by the learned appellate court were taken together for adjudication. The learned appellate court has discussed at length the oral testimony of witnesses examined by plaintiffs and defendant in the light of Exhibit-1, the lease agreement, which is although an unregistered document, but acted upon in letter and spirit by both parties and also taking into view of principles laid down in several reported judgments recorded finding that it is evident that in the present case, the lease agreement dated 07.04.2001 was entered into in between the original plaintiff and defendant for a period of three years, which has already expired and thereafter, the Title (Eviction) Suit No. 09 of 2002 was filed on 11.12.2002, but the plaint was amended on 11.06.2004 by the Original Plaintiff when the period of lease expired and the plaintiff had filed petition on 12.04.2004 under Order VI Rule 17 read with Section 151 of the C.P.C. for amending the plaint on the ground that during pendency of the suit, another cause of action has also arisen as the tenancy was only effective from 01.03.2001 to 29.02.2004 i.e. the period of three
13
S.A. No. 354/2017
years only and the said period of three years has expired on 29.02.2004 and the said period has not been extended. Hence, the defendant is also liable to be evicted on the aforesaid ground. The said prayer was allowed by the learned court below after hearing both the sides vide order dated 29.05.2004 and thereafter, plaint was amended accordingly.
24. The learned appellate court also placed reliance upon the reported judgment of Hon’ble Apex Court in the case of Padma Vithoba Chakkayya Vs. Mohd. Multani, AIR 1963 SC 70 , with regard to the issues as to what would be collateral purposes for construing an unregistered lease which is required to be registered wherein it has been observed as follows:-
“Proof as to the nature or character of a person’s possession is really a proof of a transaction showing in what character a person has come upon the land. Such a transaction is collateral one which by itself does not require to be effected by a registered deed. An unregistered document is, therefore, held to be admissible as evidence of the nature or character of a person’s possession.”
25. The learned appellate court has also discussed the law laid down by the Apex Court in Rana Vidya Bhushan Singh Vs. Rati Ram, 1969 UJ (SC) 86, wherein it has been held that in order to see whether a person has come into possession as a tenant, an unregistered document can be seen under proviso to Section 49 of the Registration Act. In the cited case, a Panchayatnama had been
14
S.A. No. 354/2017
executed which purported to create a permanent lease. The question which arose was whether a person who came into possession of the immovable property on the basis of the said Panchayatnama was a tenant or not? It was held that :-
“The Panchayatnama in the present case, therefore, is not admissible in evidence for the purpose of proving the permanent lease which it seeks to create. That is an interest in immovable property. The document being unregistered is inadmissible. But for the nature of possession reference can certainly be made to the document. It can be read in evidence. A reading of the document shows that the defendant’s possession is permissive. They admitted that the land on which they had built the mud huts belongs to the plaintiffs. They agreed to become tenants under the plaintiffs. Therefore,
in order to explain the present possession of the defendants and its nature and character the document can be admitted in evidence. This will be a collateral purpose.”
26. In view of above discussions and reasons, the appellate court concluded that defendant / appellant is also liable to be evicted from suit premises on the ground of expiry of period of lease and further possession of the plaintiffs was never authorized and term of lease was never extended. Accordingly, Issue Nos. II & III decided against the appellant / defendant and in favour of plaintiff / respondent and appeal was accordingly dismissed on contest without cost.
15
S.A. No. 354/2017
27. The concurrent findings of the courts below has been assailed in this second appeal on the following substantial question of
law:-
(I) Whether the learned Appellate Court can treat the alleged unregistered lease deed for deciding the Appeal and whether the tenancy was for more than three years?
(II) Whether the Appellate Court can rely on the averments made in an unregistered document which has no force of law until registered?
(III) Whether both the Court below can shift liability of proving case of default upon defendant, where the Plaintiff failed to prove his consistent case of issuance of rent receipts by not producing the counter-foil of the receipts?
(IV) Whether both the Courts below wrongly decided case of 11(e) of the Jharkhand Building (Lease, Rent & Eviction) Act prematurely, where the alleged lease deed was signed on 26.08.2001 and amendment of the plaint for 11 (e) of the Act was done on 29.05.2004?
28 . Learned counsel for the appellant assailing the impugned
judgment and decree passed by the appellate court in the next innings as per the direction of this Court passed in S.A. No. 10 of 2011 formulated four issues for adjudication, but failed to formulate exactly necessary questions, which were formulated in the Second Appeal No. 10 of 2011 before the Hon’ble High Court.
16
S.A. No. 354/2017
29 . It is submitted that the instant eviction has been filed by the plaintiff initially on the ground of default of two months payment of rent @ Rs. 500/- per month, but during pendency of the suit, plaintiff has amended the plaint and added additional ground of lease agreement of three years. The plaintiff has relied upon Exhibit-1, which is tenancy unregistered agreement dated 07.04.2001 and defendant has also exhibited postal order receipts (Exhibit-A to A/12) and returned copy of postal (Exhibit-B to B/12). Both the courts below have committed illegality while shifting the burden of proof the arrears of rent on the shoulder of defendant / appellant. It is consistent case of plaintiff that he used to issue rent receipts to all his tenants including this defendant / appellant, but failed to produce the counter foil of those rent receipts before the trial court and it attract Section 114(g) of Evidence Act against the plaintiff. The defendant / appellant has specifically denied that no rent receipt was ever issued by the plaintiff, inspite of regular payment of the rent. Therefore, concurrent findings of the courts below in respect of default of payment of rent, is not sustainable in the eyes of law and perverse.
30. It is next argued that appellant is tenant of plaintiff since 1972-73 and running a tailoring shop since then and has a good will attached to the tenanted shop and only livelihood of the appellant. Even during pendency of the suit and appeal also including this second appeal, the entire rent has been paid to the respondent up to September, 2021 through DD of Rs. 50,000/- which was duly received by him.
17
S.A. No. 354/2017
31. It is further submitted that the appellant was tenant of the plaintiff earlier on verbal agreement up to 2000 and as per verbal agreement, which is also an agreement, appellant was paying the rent agreed and in the year 2001, lease agreement for three years was prepared, which is unregistered document. The learned trial court while deciding Issue No. 6 held that there is no question of violating the terms and condition of the lease agreement Exhibit-1, as unregistered documents cannot be taken into consideration, hence, decided the issue no. 6 against the plaintiff. The lease agreement (Exhibit-1) stipulates about cancellation of lease agreement on the grounds i.e. default of two monthly rents and also after expiry of lease agreement. As content of lease agreement cannot be look into being unregistered document, as such plaintiff failed to establish his case of default as well as expiry of lease. The learned trial court also failed into error while deciding the Issue No. 8 against the appellant / defendant in absence of any cogent evidence only on the basis of unregistered document i.e. Lease Agreement (Exhibit-1).
32. The first appellate court while deciding the appeal ignored the evidence adduced on behalf of the appellant during trial and Issue No. VI re-casted by the appellate court has not been decided keeping in view the impact of unregistered lease agreement (Exhibit-1). Inspite of specific questions while remanding the earlier Second Appeal No. 10 of 2011, the appellate court again ignored the observation of this Hon’ble Court, hence concurrent findings of both the courts suffers from perversity and fit to be interfered with in this appeal and liable to be set aside.
18
S.A. No. 354/2017
33. On the other hand, learned counsel for the respondent has submitted that in the entire scenario of this case, this second appeal does not involve any substantial question of law as framed or otherwise. It is further argued that it is settled principle of law that an unregistered document is fit to be looked into as evidence for collateral purposes, regardless of whether it was compulsorily required to be registered. Moreover, if the appellant is arguing that there was no lease because of lack of registration then it is selfdestructive for him.
34. It is further submitted that the case set up in the written statement by the defendant / appellant / tenant himself, contain relevant admissions, which are unequivocal and voluntary in nature. In Para-8 of the written statement, the defendant himself has said that the lease deed was ‘actually executed’ on 26.08.2001. The continuance of lease beyond the period of three years, if at all an issue, can be the tenant’s claim and therefore, it is tenant’s burden to plead and prove it which he has not done. The appellant / defendant in his written statement in para-8, 9, 10, 12 & 15 has clearly admitted the existence of tenancy, it is for the tenant to establish what was the period of validity thereof, if not as claimed by the plaintiff. So far burden of proof of case of default, is concerned, specific pieces of evidence namely, rent receipts and its counter foil. The defendant has produced no rent receipts showing that he has paid rent for the month impugned in this case. There is no question of shifting of burden of proof upon the defendant. It is also settled that when both the parties have laid evidence and Court arrived at a conclusion on that basis,
19
S.A. No. 354/2017
then question of initial burden assumes no relevance. The defendant has nowhere said as to what action he took for so many years when the rent receipts were not being issued to him. Other tenants of the plaintiff respondent have deposed about issuance of rent receipts to them. There was no system for maintaining the counter foil, therefore, proof of payment of rent was certainly on the shoulder of defendant, which he failed to prove.
35. There is concurrent finding of both the courts below that more than two months i.e. July, 2002 to October, 2002, rent was not paid by the defendant to the plaintiff, which has attained the finality. It is further submitted that during pendency of the appeal, pursuant to the Court’s order, the appellant has paid Rs. 50,000/- which the respondent / landlord has not withdrawn. Earlier also Cheque of Rs. 25,000/- was given as arrears in Court which cheque was later taken back by the appellant tenant surreptitiously giving impression that he would vacate soon. The money then remained in the account of the tenant. This aspect of the matter is on record before this Hon’ble Court.
36. The fourth substantial question of law with regard to order Section 11(e) being ‘premature’ just because the lease deed was dated 07.04.2001 while the plaint was amended on 29.05.2004 is also not clear. In any case, in arguments this question has been given up by the learned counsel for the appellant and not pressed. Both the courts below has recorded concurrent findings that there was some manipulation in date in place of original date mentioned in lease agreement i.e. 24.03.2001, but it is clear that agreement although
20
S.A. No. 354/2017
executed in the month of March, 2001, but came into effect from 01.03.2001. The amendment of plaint relates back the pleading in this regard. Reliance has been made in the reported judgment of Siddalingamma & Anr. Vs. Mamtha Shenoy reported in (2001) 8 SCC 561 .
37. It is further argued that expiry of terms of lease and default in payment of rent are two distinct and independent grounds and if any one answered in favour of the landlord, eviction should follow.
38. In the backdrop of above arguments, learned counsel for the respondent has submitted that there is no illegality or infirmity in the concurrent findings of both the courts below requiring any interference by way of this second appeal, which is devoid of merits and fit to be dismissed with cost.
39. I have given thoughtful consideration to overall aspects of the case as dealt with by both the courts below in the light of points of argument raised by the respective parties, in the light of substantial question of law formulated in this case for adjudication. There appear two important points involved in the suit; first is whether there is any default in payment of rent for the impugned period by the defendant / tenant and second about consideration of unregistered document.
40. So far first point with regard to default in payment of rent for the impugned period is concerned, it appears that the creation of tenancy in favour of defendant and its acceptance and rate of rent as well as period of lease has been admitted through pleading of the parties. There is concurrent finding of fact of both the courts below,
21
S.A. No. 354/2017
after discussion or oral as well as documentary evidence at length, that from the month of July, 2002 to October, 2002 rent has not been paid to the plaintiff by the defendant and no cogent evidence has been brought on record that the above rent was ever paid to the plaintiff by the defendant / appellant. The payment through money order and its denial has been proved subsequent to the aforesaid period with allegation that the plaintiff asked for enhancement of rent and also payment of security money, which was declined by the defendant. There was no previous dispute since long when the defendant himself admits induction as tenant since 1972 on payment of rent.
41. So far second point about consideration of unregistered document is concerned, which is required under law to be compulsory registered. In this respect also the learned appellate court has dealt in length from para-65 to 81 of its judgment.
In the instant case, there is concurrent finding of the court
below that although the lease agreement was required under law to be compulsorily registered, but it may be used for collateral purposes like creation of tenancy, fixation of rent and other purposes. Here in this case, even if Exhibit-1 is to be ignored for the purpose of period of lease, even though there is specific admission by the pleading of the parties, which are unequivocal, unambiguous and voluntary in nature. It is settled principle of law that fact admitted need not to be proved. It also creates estoppel against the party who admits certain fact. Therefore, the plea of appellant that the first appellate court has failed to take into consideration the points to be decided afresh on remand of the case in earlier Second Appeal No. 10 of 2011 passed
22
S.A. No. 354/2017
by this Hon’ble Court appears to be not correct and genuine.
42. Considering the overall materials available on record, I
find that there is no illegality or infirmity in the concurrent findings of the courts below and also finds that there is no merit in this appeal,
which is hereby dismissed on merits with costs.
43. Pending I.As, if any stand disposed of.
(Pradeep Kumar Srivastava, J.)
Jharkhand High Court, Ranchi Dated :- 07/03/2024 Sunil/ NAFR
3 issues framed by the court
Whether an unregistered lease deed can be used to establish expiry of lease period and default for eviction.
Whether burden of proving payment of rent lies on the tenant when rent receipts counterfoils were withheld.
Whether the concurrent findings of default and lease expiry warrant interference in second appeal.
4 provisions across 4 enactments
Md. Abdul Wahab
Ashok Kumar Singh
Asha Singh
Nirmala Singh
Pradeep Kumar Srivastava
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
