Delhi High Court

Harish Chandra Bhutani vs Inderjeet Singh on 20 May, 2011

Author: Indermeet Kaur

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                              Judgment reserved on : 12.5.2011
                               Judgment delivered on : 20.05.2011

+                  R.S.A.No. 13/2008

HARISH CHANDRA BHUTANI                           ...........Appellant

                         Through:    Mr.G.P. Thareja, Advocate.

                         Versus

INDERJEET SINGH                                 ..........Respondent
                         Through:    Mr.R.K.   Sharma,   Advocate
                                     along with Mr. M.L. Manocha,
                                     Advocate.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to
        see the judgment?

     2. To be referred to the Reporter or not?              Yes

     3. Whether the judgment should be reported in the Digest?
                                                          Yes

INDERMEET KAUR, J.

1. This appeal has impugned the judgment and decree dated

31.10.2007 which had reversed the finding of the trial judge dated

20.11.2004. Vide judgment and decree dated 20.11.2004, the suit

filed by the plaintiff Inderjeet Singh seeking permanent and

mandatory injunction, (to the effect that the shutter affixed by the

defendant on the suit premises i.e. shop in property no. 1/810,

G.T. Road, Shahdara, Delhi is illegal; defendant be directed to

remove the said shutter as it is illegal and unauthorized), had

been dismissed. Impugned judgment had reversed this finding.

The suit of the plaintiff was decreed in part; defendant had been

restrained from carrying out any further construction in the suit

property; he had been restrained from using the roof which had

come into existence on account of the aforenoted additions and

alterations carried out by him.

2. The plaintiff had taken the aforenoted the suit property on

rent from the defendant at the monthly rental of Rs. 175/-; this

was vide Rent Deed dated 26.03.1984; the transaction had been

entered into with Smt. Madan Kaur, the deceased mother of the

plaintiff. Smt. Madan Kaur had died on 08.06.1995; after her

death, the defendant had attorned to the plaintiff; plaintiff was the

landlord of the defendant; defendant had no right to sublet, assign

or part with the tenanted premises or to make any unauthorized

alternations or additions which he did without permission of the

plaintiff; he had affixed several shutters in the shop at a distance

of 8 ft in each wall i.e. approximately 60 ft in length, giving a new

shape to the tenanted premises; this came to be known to the

plaintiff on 18.01.99 when he visited the shop to realize the rent;

defendant was directed not to cause damage to the suit property

or make any additions or alterations without the consent of the

plaintiff but to no avail; local police had also been approached but

they did not paid any heed. Present suit was accordingly filed.

3. The defendant denied the averments in the plaint. His

contention was that he was well within his rights to carry the said

additions and alterations in terms of the Rent Agreement dated

26.03.1984; Clause 6 permitted him to do so; plaintiff had no

cause of action; suit was liable to be dimissed.

4. On the pleadings of the parties, the following three issues

were framed:-

i) Whether the plaintiff is entitled to decree for

Permanent injunction against the defendant as prayed

for ? OPP

ii) Whether the plaintiff is entitled to decree for

mandatory injunction against the defendant as prayed

for ? OPP

iii) Relief?

5. Oral and documentary evidence was led which included two

PW's on behalf of the plaintiff as also the local commissioner; one

witness was examined on behalf of the defendant. Trial judge was

of the view that the Rent Deed Ex. PW 1 /2 was not registered in

view of the provisions of Section 49 of the Registration Act, it

could not be looked back; not even for a collateral purpose. At the

same time, the trial judge had relied upon Clause 6 of the Rent

Deed to non-suit the plaintiff; trial judge was of the view that

Clause 6 gave ample power to the plaintiff to make necessary

additions and alterations in the suit premises; plaintiff was not

able to prove his case. His suit was dismissed.

6. This is a second appeal. Although the formal order of

admission has not been passed but on 16.09.2010 the following

substantial question of law was formulated:-

"Whether the impugned judgment dated 31.10.2007 restraining the appellant from carrying on further construction in the property/not interfering with the rights to use the roof of suit property is a perversity as no such relief was claimed? If so, its effect?"

7. On behalf of the appellant it has been urged that the

impugned judgment is perverse. It has reversed the finding of the

Trial Judge without any cogent reason; the Court has failed to take

into account the fact that Clause 10 had stood deleted from the

rent deed (Ex. PW1/2); Clause 6 had clearly recited a right in

favour of the appellant to construct in the suit premises; he had

accordingly raised construction therein and is now using the

premises for his shop and godown; there is no staircase to the

roof; the respondent cannot in any manner reach the roof; the

tenanted premises necessarily comprise of the roof as well.

Learned counsel for the appellant has placed reliance on AIR 1986

Delhi 236 Rawal Singh Vs. Kwality Stores and others to

substantiate his submission that when a one storeyed building is

let out, in the absence of a contract to the contrary, the

presumption is that the roof of the building has also been let out

along with that building. It is pointed out that the ratio in the

aforesaid judgment is clearly applicable to the facts of the present

case.

8. Arguments have been countered. It has been stated that

Smt. Madan Kaur, the deceased mother of the plaintiff was an

illiterate lady; parties were bound by Clause 10 which clearly

stated that the roof was not a part of the tenanted premises and

tenant would not construct on the first floor and not use the roof

of the property.

9. Perusal of the record shows that what has been let out to

the appellant is a shop; it is depicted in red colour in the site plan

attached with the plaint; it was in property No. 1/810, G.T. Road,

Shahdara at a monthly rent of Rs.175/-. The mother of the plaintiff

(Madan Kaur) vide document dated 26.03.1984 had given a lease

of these premises to the defendant. This document has been

admitted. It has been proved in the Court as Ex. PW1/2.

Clause 6 of the agreement provides as under:-

"The tenant shall carry out any structural addition or

alterations to the said premises layout or fixture".

Clause 10 is the disputed clause, it reads as under:-

"That the tenant shall not construct the first floor on the

rented premises and also will not use the roof of the said

property."

The contention of the appellant is that Clause 10 has been

struck out and this has been duly signed by the parties. This

position has been disputed. Even presuming that Clause 10 is

not read as part of Ex PW1/2; the whole case of the appellant is

hinged upon clause 6; i.e. his permission to carry out the additions

or alterations in the premises.

10. The document Ex PW1/2 was admittedly not a registered

document; it could be looked into only for a collateral purpose.

What is a collateral purpose had been rightly held to be: to

determine the relationship between the parties or the purpose of

letting. It could not be looked into for any other purpose.

11. The finding returned in the impugned judgment reads as

follows:-

"Issues which arise for the consideration are:-

i) Whether Ex. PW 1 /2 dated 26.03.1984 being an unregistered document can be read in evidence being unregistered documents and if not what is the effect thereof.

ii) Whether addition/alteration which have been carried out by the respondent in 1993 and 1999 can be treated as having been carried out by the respondent with the consent of the appellant.

iii) Whether the addition/alteration carried out by the respondents have caused substantial damage to the suit property and have changed the nature of the property.

iv) Whether the appellant is entitled to the relief of injunction as prayed for including the relief of mandatory injunction with a direction to restore the status quo ante as on the date when the addition/alteration has been carried out.

12. Ld. Counsel for the appellant submitted that a document which is unregistered is inadmissible in evidence cannot be looked into to prove the terms of tenancy on account of bar of the Section 49 of the Registration Act even though such a document can be looked into collateral purposes does not include the terms of tenancy.

13. However, the collateral purposes would not include the terms of tenancy. It is submitted that the permission to carry out additions/alterations in the suit property being a term of tenancy is not collateral purposes for which an unregistered document can be looked into. It is further stated, that the respondent being a tenant had no legal right to change the nature of the property and is, therefore, liable to restore the property was it was in existence at the time of letting out.

14. The appellant has relied upon the following judgments:-

i) Bhaiya Ramanuj Pratap Deo Vs. Lalu Maheshanuj Pratap Deo and Ors. 1981 (4) SCC

ii) AIR 1981 Delhi 359

15. In the case of Bhaiya Ramanuj Pratap Deo Vs. Lalu Maheshanuj Pratap Deo and Ors. (supra) Hon'ble Supreme Court dealt with the fact of the non-registration of a document which were required to be registered compulsory. In para 22 of the aforesaid judgment it has been observed.

22. As regards the second reason, the argument is based on Section 17 read with Section 49 of the Indian Registration Act. Section 17 of the Registration Act enumerates the documents requiring registration. Section 49 of the Registration Act provides that no document required by Section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall (a) affect any immovable property comprised therein, (b) * * * (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered. Khorposh (maintenance) deed is document which requires within the meaning of Section 17 of the Indian Registration Act and as the document was not registered, it cannot be received as evidence of any transaction affecting such property. Proviso to Section 49, however, permits the use of document, even though undersigned, as evidence of any collateral transaction not required to be effected by registered instruction. In this view of the legal position the maintenance deed can be looked into for collateral purpose of ascertaining the nature of possession."

16. In the case of M/s Jagatjit Industries Ltd. New Delhi Vs. Rajiv Gupta (supra) Hon'ble Mr. Justice Singh, the Hon'ble High Court of Delhi discuss the meaning of collateral transaction in relation to an unregistered lease in para 8 of the judgment wherein, it has been observed:-

"Learned counsel for the petitioner contends that even if this document requires registration and as it has not been registered, the same can be read as evidence of any collateral transaction not required to be effected by registered instrument. It is true that under the proviso to Section 49 of the Registration Act an unregistered document affecting immovable property can be received as evidence of any collateral transaction. The question is what is the collateral transaction in the present case. Learned counsel for the petitioner relies upon Term No. 2 of the lease deed. The term is as under:-

"That the lease is for a period of 11 months with retrospective effect from 1st May, 1969 with two years option with the lessee. The lease can be terminated or extended by giving two months' notice by either side after expiry of lease of option period. If exercised."

He says that the lease can be terminated by giving two months' notice by either side after expiry of lease i.e. after the expiry of the initial fixed period of 11 months. He says that such a term can be looked at to find out the period of notice to quit to determine the tenancy. He relies upon Lala Fateh Chand V. Mst. Radha Rani. 1956 All Lj 625. With respect to the learned Judge, I do not agree. The term regarding notice of eviction is a term which affects immovable property and therefore it cannot be said to be a collateral transaction. Further this authority was held to be not good law by Allahabad High Court itself in Sallomal V. Smt. Naina Bai, AIR 1979 All 32. Under Section 49 of the Registration Act a document compulsorily registrable, if unregistered, is inadmissible in evidence of a transaction affecting immovable property. The term regarding notice of eviction is a term which

effects the immovable property. The main purpose of this term is as to when the tenant can be required to deliver possession of the tenancy premises."

17. Ratio of the aforesaid two judgments read with Section 17 and 49 of the Registration Act makes it abundantly clear that a Lease Deed to be read in evidence which is for a period of more than 11 months has to be compulsorily registered falling which, the terms and conditions as mentioned in a Lease Deed which is unregistered even if the lease continues after a period of 11 months becomes inadmissible in evidence. A document creating a lease of such a nature at the most can be seen only for collateral purposes i.e. to the relationship between the parties or the purpose of letting.

18. On the other hand, the respondent while referring the written note submitted before the ll. Trial court relied upon the following judgments:-

             i)      1985 RLR 408
             ii)     AIR 1979 Allahabad 187
            iv)      AIR 1986 Delhi 236
                   19.      I have gone through the aforesaid

judgments. As far as the judgments delivered in 1985 RLR 408 and AIR 1979 Allahabad 187 do not help the case of the appellant in understanding the impact of an unregistered lease deed. The judgment delivered in the case of AIR 1986 Delhi 236 only lays down that an unregistered lease deed can be looked into to ascertain the collateral purposes. In view of the judgment of Hon'ble Mr. Justice Sultan Singh reported in AIR 1981 Delhi 359 (supra) this judgment is again of no help to the case of the respondent. In view of the judgment cited, this judgment is of not much help to the case of the respondent. Thus answer to the first question is given in favour of the appellant. For the similar reason, it cannot be said that

the addition/alteration carried out in the property by the respondent in 1993 and 1999 were carried out with the consent of the appellant.

20. However, since there is no evidence led on record which may go to show that by carrying out additions/alteration the value of the suit property has been impaired or any substantial damage has been caused to the property or it has changed the nature of the suit property. The foruth question is answered against the appellant.

21. Taking into consideration the facts of this in their entirety it is apparent, that the respondent being a tenant had no right to carry out the addition/alteration which have been done in the suit property however as the additions/alterations have not impaired the value of the property or have caused any substantial damage to the same, there is no necessity to grant the relief for mandatory injunction as prayed for by the appellant.

22. However, the respondent is not entitled to carry out any further construction in the property or to restrain the appellant from using the roof of the property which have come into existence now on account of additions/alteration carried out by the respondent at his own responsibility in as much as, even from the reading of Ex.PW 1 /2 for collateral purposes it can not be inferred, that the roof of the suit property was let out to the respondent. Thus, I allow the appeal in part and pass an order of injunction against the respondent from carrying out any further construction in the property without consent of the appellant and further not to interfere with the rights of the appellant to use the roof of the suit property. With these observations, the appeal is disposed of. Copy of this order be sent to the trial court along with TCR. Appeal file be consigned to the record room."

12. Impugned judgment had rightly returned the finding that

the roof was not a part of the tenanted premises; it had come into

existence only after the additions and alterations had been made

by the defendant which he was not permitted to do. No permission

was available with the defendant to carry out any additions or

alterations on the roof. There was admittedly no stair case by

which the tenant could have any access to the roof; roof was an

independent portion and not a part of the tenancy of the

defendant. Photographs have also been placed on record to depict

the site; these photographs do not substantiate the case of the

appellant; the roof could in no manner be accessed.

13. The judgment relied upon by the learned counsel for the