Madhya Pradesh High Court
Ashok Kumar vs Fasiuddin on 6 March, 2024
1
In The High Court Of Madhya Pradesh
At Jabalpur
Before
Hon'ble Shri Justice Duppala Venkata Ramana
On The 6th Of March, 2024
Misc. Petition No. 6132 Of 2022
BETWEEN:-
1 Ashok Kumar S/o Late Arjundas Aged about
58 years Occupation Business R/o 49,
Advocates Colony, Idgah Hills, Bhopal (M.P.)
2. Om Puruswani Aged about 55 years
Occupation Business R/o 48, Advocates
Colony, Idgah Hills, Bhopal (M.P.)
.....Petitioners/Defendants
(By Shri Siddharth Gulatee - Advocate)
And
Fasiuddin S/o Late Shri Shamsuddin Aged
about 55 yesrs R/o H.No.45, Mangalwara
Road, Ghodanakkas Bhopal (M.P.)
.....Respondent/Plaintif
(by Ms. Aditi Shrivastava - Advocate)
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Reserved on : 13.02.2024
Pronounced on : 06.03.2024
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This petition having been heard and reserved for orders, coming on for
pronouncement this day, the Court passed the following:-
ORDER
This miscellaneous petition is preferred against the order dated
28.11.2022 in Civil Suit No.RCSA/361/17 on the file of 13 th Civil Judge
(Junior Division), Bhopal rejecting the objections preferred by
petitioners/defendants for marking the lease agreement dated 11.02.2003 as
Exhibit P-10.
2. Heard the learned counsel for the petitioners/defendants and the
learned counsel for the respondent/plaintiff.
3. The petitioners herein are the defendants(tenants) in the above suit and
the respondent is the plaintiff(landlord) in the suit before the Court below.
4. The respondent/plaintiff initiated an action by filing Civil Suit
No.RCSA/361/17 on the file of 13th Civil Judge (Junior Division), Bhopal
against the defendants seeking relief of eviction from the suit scheduled
property building no.45 consisting shop with two shutters located in the
ground floor in Shamshuddin Market, Mangalwara Road, Ghodanakkas
Bhopal with specific boundaries as mentioned in the plaint scheduled
(Annexure P-1).
5. The defendants filed written statement denying the allegation made in
the plaint and accepted the para 4 of the plaint. When the matter came up for
trial, PW-1/ plaintiff at to give evidence, the petitioners filed objections
regarding admissibility of rent agreement dated 11.02.2003 which is
unregistered and improperly stamped and it cannot be marked/exhibited,
however, the trial Court rejected the objections and marked the rent
agreement as Exhibit P-10.
6. Aggrieved by and dissatisfied with the order of the trial Court
preferred the present miscellaneous petition on the ground that the impugned
order of the trial Court is absolutely illegal and the learned trial Court has
completely ignored the provisions contained in the Indian Stamp Act, 1899
and the trial Court ought to have appreciated the objections with regard to
admissibility of unregistered and improperly stamped rent agreement.
Therefore, the impugned order passed by the trial Court deserves to be set
aside.
7. It is the case of the petitioners that as the leasee of the respondent, the
suit scheduled property was taken on lease on 11.02.2003, initially for a
period of three years at the rent of Rs.1400/- per month by executing lease
agreement on a non-judicial stamp paper of Rs.100/- for the lease period
commencing from 01.02.2003 signed by both the parties and the tenancy is
month to month. The first petitioner was inducted into position of the suit
scheduled property pursuant to the above said lease agreement for running
business and further as per the rental agreement, for every three years 10% of
amount is enhanced on the existing rent. The respondent/plaintiff requested
the petitioner/defendants to vacate the premises and he has not vacated the
same and sub-let the suit subject property to the second defendant and the
second defendant is in occupation of the property illegally and
unauthorizedly, therefore, the respondent/plaintiff filed a suit for eviction by
terminating the tenancy.
8. The petitioners/defendants filed a written statement as well as the reply
for the above said petition opposing the said relief of eviction and accepted
the averments in para 4 of the paint, it clearly proves that he admitted that
the lease agreement said to have been executed by the petitioners/defendants
on 11.02.2023 in favour of respondent/plaintiff. When the
respondent/plaintiff administrating the oath to give evidence, the
petitioner/defendant took an objection to mark the lease agreement dated
11.02.2003 on the ground the said lease agreement is not registered and
improperly stamped and the trial Court rejected the objections and marked
the lease agreement as Exhibit P-10 by relying on the judgment of Smt.
Shweta Kumari vs. Shivshankar1, the relevant para held as under:-
1. 2012 (3) MPHT 318
6. .......... in view the terms of rent note wherein the tenancy
was for month-to-month and the landlord is having right to get
the suit accommodation vacated by giving a notice. This Court
is of the opinion that learned Court below committed no error
in holding that document is neither insufficiently stamped nor
requires registration. Thus, no illegality has been committed by
the learned Court below in rejecting the objections raised by
the petitioner regarding admissibility of the document in
evidence which requires no interference. In view of this, petition
filed by the petitioner has no merits and the same stands
dismissed. ...........
9. Another decision in Giri Yadav vs. L. Ramesh Goud2, the relevant
para 15 held as under:-
"15. .........that the lease agreement, marked as Ex.A-5, ought
not to have been received by the trial Court, in evidence, at all.
She places reliance upon the judgment of this Court in Mulla
Alamsabgari Dastigiri v. B. Pullamma, and Section 17 of the
Registration Act. The objection, as to admissibility of the
document, Ex.A-5, on the ground that it was not registered,
could certainly have been examined, if only the document was a
lease deed. A lease deed, in respect of an immovable property,
for a period, exceeding one year, or reserving a yearly rent,
becomes admissible in evidence, if only it is registered, as
required under Section 107 of the Act. Ex.A-5 is termed as lease
agreement. Even assuming that the nomenclature of Ex.A-5, is
not a decisive factor, and that its contents disclose that it was a
lease deed, the objection cannot be sustained, for more reasons
than one. Firstly, the appellant admitted the lease through his
reply in Ex.A-3. Secondly, even if Ex.A-5 is to be treated as lease
deed, it becomes admissible for collateral purposes, under the
proviso to Section 49 of the Registration Act. The possession of
a party to the suit, in relation to a property, is always treated as
collateral..........
10. Another decision in Sardar Amar Singh & anr. v.s Smt. Surinder
Kaur3, relevant para 12 held as under:-
"12.............we are clearly of the view that the unregistered
lease deed can be used to show the nature and character of
possession of the defendants and virtually from the nature of
possession and other circumstances the status of the applicants
(defendants) as tenant in the premises can as well be
established."
2. 2005(4)ALT 411
3. AIR 1975 MP 230
11. In light of the above decisions read together, the unregistered lease
deed is admissible in evidence for collateral purpose for proving the
possession of the subject property and it cannot be used to prove the terms of
lease.
12. The another decision of Hon'ble Apex Court in Paul Rubber
Industries Pvt. Ltd. vs. Amit Chand Mitra & anr.4, the relevant para 14
and 15 held as under:-
"14 ........... This decision is not an authority for the proposition
that nature and character of the possession in an unregistered
lease deed could always constitute collateral purpose so that the
Court could examine the deed for that reason. The purpose for
which lease is granted forms an integral part of the lease deed in
this case and this very issue forms one of the main disputes. The
expression "collateral purpose" has been employed in proviso to
Section 49 of the Registration Act to imply that content of such a
document can be used for purpose other than for which it has
been executed or entered into by the parties or for a purpose
remote to the main transaction. ........
15 .......It was observed in this judgment that "nature and
character of possession" could constitute collateral purpose but
that was not the point which was directly in lis before this Court.
In our opinion, nature and character of possession contained in a
flawed document (being unregistered) in terms Section 107 of the
1882 Act and Sections 17 and 49 of the Registration Act can form
collateral purpose when the "nature and character of
possession" is not the main term of the lease and does not
constitute the main dispute for adjudication by the Court. In this
case, the nature and character of possession constitutes the
primary dispute and hence the Court is excluded by law from
examining the unregistered deed for that purpose...... "
13. In the light of the above decisions, the unregistered lease for more than
two years, though it is not admissible to prove any right under them, they are
admissible to prove the character of the possession of the leasee and a
document required to be registered, if unregistered, is not admissible in
evidence under Section 49 of the Registration Act, 1908 such an unregistered
document can however be used is an evidence for collateral purpose as
4. 2023 SCC Online 1216
provided under Section 49 proviso of the Registration Act, 1908. The
proviso is clearly empowers the Courts to admit any unregistered documents
as evidence of any collateral transaction is not required to be effected by
registered instrument.
14. In the judgment of A.R.C. Overseas Private Limited v. Bougainvillea
Multiples and Entertainment Centre Pvt. Ltd. 5, the relevant para 12 held as
under:-
"12. This construction of the provision, which was accepted for a
long time by the High Courts, has been duly recognized by the
amending Act 21 of 1929, which added a proviso to the section.
The proviso clearly empowers the Courts to admit any
unregistered document as evidence of a collateral transaction not
required to be registered. In (1984) 1 SCC 369 : AIR 1984 SC 143
(Satish Chand Makhan v. Govardhan Das Byas) it was held that
unregistered lease deed can be admitted in evidence for collateral
purpose, invoking proviso to Section 49 of the Registration Act, as
terms of lease are not a collateral purpose within its meaning.
(1991) 1 SCC 422 : AIR 1991 SC 744 (Rai Chand Jain v. Miss
Chandra Kanta Khosla) speaks that it is well settled that
unregistered lease executed by both the parties can be looked into
for collateral purposes.............."
15. In the light of the above decisions, thus in the instant case, the period
of lease and terms of lease cannot be proved by admitting the lease deed
(Exhibit P-10) in evidence, even though not admissible in evidence can be
looked into for collateral purpose and it is to be seen on the nature of the
possession of the property. If relationship of landlord and tenant can be said
to have been established between the parties, a monthly tenancy can be
presumed under Section 106 of Transfer of the Property Act, 1882 and
unregistered lease deed can be shown to prove the nature and character of the
possession but it cannot be used to prove the terms of the lease and the
unregistered lease deed is admissible in evidence for collateral purpose for
proving the possession of a party. Therefore, this Court is of the opinion that
5. 2007 SCC OnLine All 528
the learned Court below committed no error to receive lease agreement
Ex.P-10 by holding that the document is neither insufficiently stamped nor
requires registration. Thus, no illegality has been committed by learned Court
below in rejecting the objections raised by the petitioners regarding
admissibility of the lease agreement in evidence which requires no
interference. In view of the same, this petition filed by the petitioners has no
merits, therefore, this Court does not find any basis to interfere with the order
of the Court below.
16. This petition is accordingly, dismissed.
DUPPALA VENKATA RAMANA,J
vibha
VIBHA PACHORI
2024.03.06 14:28:42
+05'30'
