Allahabad High Court
Mohd. Vasee Khan vs Regional Ayurvedic/Unani ... on 26 November, 2014
Bench: Pankaj Mithal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 5
Case :- CIVIL REVISION No. - 579 of 2011
Revisionist :- Mohd. Vasee Khan
Opposite Party :- Regional Ayurvedic/Unani Officer And Others
Counsel for Revisionist :- Digvijay Singh
Hon'ble Pankaj Mithal,J.
Heard Sri Digvijay Singh, learned counsel for the plaintiff/revisionist (landlord) and Sri Manoj Goswami, learned counsel appearing for the defendants/respondents (tenants).
The suit of the landlord for arrears of rent and eviction of the tenant from the disputed property has been dismissed by the judgment and order date 17.9.2011 passed by the Small Causes Court/Additional District Judge.
According to the plaint case, the premises in dispute is outside the ambit of the U.P. Act No.13 of 1972 (hereinafter referred to as the 'Rent Act'). It was let out to the tenant w.e.f. 1.9.2006 at the rate of Rs.80/- per sq. meter for a total sum of Rs.4,549.60 per month. The tenants defaulted in payment of rent from the very inception. The tenancy was terminated by a composite notice dated 15.10.2009 under Section 106 of the Transfer of Property Act and the entire arrears of rent at the above rate were demanded. The said notice was served upon tenants on 20.10.2009. On the basis of the aforesaid notice the above suit was filed wherein the tenants appeared and contested the matter by admitting the relationship of landlord and tenant in respect of the premises in dispute but denying lease deed or any agreement with regard to the rate of rent.
The suit had been dismissed holding that as there is no agreement, much less registered agreement of lease or about the rate of rent between the parties which is mandatory for a lease of more than a year in respect of immovable property.
On the pleadings of the parties, it is admitted that the provisions of the Rent Act are not applicable to the premises in dispute. Secondly, there is relationship of landlord and tenant between the parties and that it has been let out to the tenants we.f. 1.9.2006. It is also admitted to the parties that no lease deed in respect of letting out or rate of rent was executed and signed between them.
A lease deed of an immovable property for more than one year is required to be compulsorily registered in view of Section 17(1)(d) of the Registration Act and an unregistered lease deed under Section 10 of the Contract Act may not be a contract, but if lease of an immovable property for a term more than one year is not made by a registered deed or is made orally than it would be deemed to be a lease from month to month.
In Punjab National Bank Vs. Ganga Narain Kapur AIR 1994 All 221 his Lordship of this Court held if a lease of an immovable property for more than a year or like has been entered into orally or by some deed which is not registered, it would be a lease according to Section 106 of the Transfer of Property Act.
Section 106 of the Transfer of Property Act provides that a lease of immovable property for purposes other than agriculture and manufacturing shall be deemed to be a lease from month to month in the absence of a contract or local law or usage which would be terminable on part of lessor or lessee by fifteen days notice which in its application to the State of U.P. is 30 days. Therefore, irrespective of the fact that there is no registered lease deed it will be deemed to be a lease deed on month to month basis terminable by 30 days notice as contemplated under Section 106 of the Transfer of Property Act.
In the instant case, the tenancy had been terminated vide notice dated 15.10.2009. The notice has been proved and has been held to be valid. It has been served upon the tenants.
Thus, as the tenancy stood validly terminated by notice under Section 106 of the Transfer of Property Act the tenants cannot avoid a decree of eviction from the premises in dispute. The court below, as such, manifestly erred in law in dismissing the suit.
The mere fact that there was no lease deed in writing and that no evidence was adduced by the parties to prove the rent agreed to be paid by the tenants is not sufficient to dismiss the suit as a whole. In absence of any evidence to prove the rate of rent, the court below at best could have refused to decree the suit for the arrears of rent but not for eviction.
According to the landlord, the rent was agreed at the rate of Rs.80/- per sq. meter at the prevailing circle rate in the area. Since the area of the property leased out was 56.87 sq. meter the rent was worked out Rs.4,549.60 per month. However, there is no evidence on record either to prove that the prevailing circle rate in the area at the relevant time was Rs.80/- per sq. meter or that the tenants accepted to pay rent at the above rate or ever paid it at the said rate.
In view of the aforesaid facts and circumstances, there is no evidence to prove the agreed rate of rent between the parties. In such circumstances, no decree for arrears of rent could have been passed.
The tenants are admittedly in possession of the premises in dispute w.e.f. 1.9.2006 and they are using it to their advantage. They cannot be permitted to use and occupy the property of any person without paying proper compensation for the same. Therefore, in the interest of justice, it is considered appropriate to award damages for use and occupation of the premises in dispute at a token rate of Rs.2,500/- per month w.e.f. 1.9.2006 till the date of vacation of the premises in dispute.
The judgment and order of the court below dated 17.9.2011 is set aside and suit of the plaintiff/revisionist is decreed for eviction of the defendants/respondents (tenants) and for payment of damages as aforesaid with no order as to costs.
The revision is allowed.
Order Date :- 26.11.2014
Brijesh
