Rajasthan High Court - Jodhpur

Chetan Kumar @ Chetan Prakash vs Akhilesh Chandra Chhabra (A.C. ... on 10 March, 2021

Bench: Arun Bhansali

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil First Appeal No. 450/2020

1. Chetan Kumar @ Chetan Prakash S/o Shri Sugan Chand Ji Jain, Aged About 56 Years, R/o N.t.c. Market, Halka Abadi Gram Panchayat - Badoliya, Jhalar Bawadi, Post Office - Bhabha Nagar, Tehsil Rawatbhata, District Chittorgarh

2. Smt. Madhu Jain W/o Shri Chetan Kumar @ Chetan Prakash Jain, Aged About 54 Years, R/o N.t.c. Market, Halka Abadi Gram Panchayat - Badoliya, Jhalar Bawadi, Post Office - Bhabha Nagar, Tehsil Rawatbhata, District Chittorgarh.

----Appellants Versus

1. Akhilesh Chandra Chhabra (A.c. Chhabra) S/o Shri Bosa Ram Ji Chhabra, R/o 277, New Market, Rawatbhata, Tehsil Rawatbhata, District Chittorgarh.

2. Harsh Chhabra S/o Shri Akhilesh Chandra Chhabra, R/o 277, New Market, Rawatbhata, Tehsil Rawatbhata, District Chittorgarh.

3. Kalyan Jain S/o Shri Duli Chand Ji Jain, R/o Kalyan Electricals, Naya Bazar, Rawatbhata, Tehsil Rawatbhata, District Chittorgarh.

                                                                     ----Respondents


    For Appellant(s)          :     Mr. A.K. Babel.
    For Respondent(s)         :     Mr. Vivek Shrimali.



                HON'BLE MR. JUSTICE ARUN BHANSALI

Reportable                               Order

    10/03/2021

This appeal is directed against judgment & decree dated

14.07.2020 passed by the Additional District Judge No.2,

Chittorgarh, whereby the suit filed by the plaintiff, for eviction and

arrears of rent has been decreed.

(2 of 18) [CFA-450/2020]

The suit was filed on 10.07.2012 by the plaintiff, inter alia,

with the averments that the suit shop situated at Jhalar Bawari,

NTC Market, Tehsil - Rawatbhata, District - Chittorgarh was let

out to the defendant No.1 on 26.09.1991 for rent @ Rs.725/- per

month for a period of 5 years on the terms agreed between the

parties. The agreement was signed by plaintiff, defendant No.1

and defendant No.3 give surety that in case defendant No.1 fails

to comply with the terms of the agreement, he would get the shop

vacated. It was claimed that the shop was required by the

plaintiff's son - Harsh Chhabra for his business. The defendant

No.1 default in payment of rent and despite several reminders, the

rent has not been paid and, therefore, in a response dated

29.09.2000, which was given by counsel of the defendants, it was

accepted that rent has not been paid since February, 1998 when

demand was made, the defendant No.1 behaving as if the said

shop was owned by him and, therefore, he has lost his status of a

tenant. It was claimed that rent for 170 months amount of

Rs.2,34,200/- was due.

Allegations were made that on 24.04.1997, defendant-

Chetan Prakash and his wife claimed themselves to be the owner

of the shop in question and produced a forged document with the

Rajasthan State Electricity Board, regarding which, on

18.12.2000, the defendant-Chetan Prakash was convicted by the

competent criminal court for offence under Sections 467 and 471

IPC.

Notice dated 29.08.2000 was given , another notice dated

27.06.2005 was given and one more notice dated 22.09.2009 was

given and the final notice dated 02.04.2012 was given terminating

(3 of 18) [CFA-450/2020]

the tenancy and for vacating the premises. It was claimed in the

plaint that, though not required, the tenancy has been terminated

by issuing notices under Section 106 of the Transfer of Property

Act, 1882 ('the TP Act'). Ultimately, it was prayed that the

defendant be evicted from the shop in question and the decree be

granted for arrears and for mesne profit @ Rs.3,000/- per month.

Defendant No.3 filed written statement claiming misjoinder

of parties.

Defendant No. 1 and 2 filed the written statement contesting

the admissibility of the rent-note as the same was deficiently

stamped and was unregistered. The requirement claimed by the

plaintiff for his son was denied. It was indicated that the rent was

sent through money-order, which was refused by the plaintiff. The

defendant has never refused to pay the rent. The plaintiff himself

has stopped taking the rent. The calculation of rent was also

denied.

Further submissions were made that the suit was barred by

limitation as the period of 5 years indicated in the agreement

expired on 27.09.1996 and after passage of 12 years, the suit

could not be filed, the same was barred under Article 65 and 67 of

the Limitation Act, 1963 ('the Limitation Act') and that notice

dated 09.04.2012 under Section 106 of the TP Act was illegal and

void.

Replication was filed disputing the averments made in the

written statement.

Based on the pleadings of the parties, the trial court framed

ten issues. On behalf of the plaintiff, three witnesses were

examined and 33 documents were exhibited and on behalf of the

(4 of 18) [CFA-450/2020]

defendants, two witnesses were examined and one document was

produced.

After hearing the parties, the trial court came to the

conclusion that the defendant No.3 gave surety of deposit of rent

upto September, 2001 and after adjusting the amount, the

plaintiff was entitled to recover the rent for a period of three years

from before the filing of the suit, the defendant was in arrears of

rent. The bonafide necessity was found in favour of the plaintiff,

however, it was indicated that comparative hardship has not been

proved. The issue pertaining to misjoinder was held against the

defendant. On issue No.8 pertaining to limitation, the trial court

observed that the suit must not be dismissed for procedural errors

as the agreement was for five years, it was the duty of the

defendant to hand over vacant possession, notice under Section

106 of the TP Act was given, the Rent Control Act, 2001 was

applied in the year 2003, however, the same was not applicable to

the area, where the suit property is situated. There was no

limitation for notice under Section 106 of the TP Act and that the

defendant failed to prove that under Article 65 and 67 of the

Limitation Act, the suit was barred by limitation and,

consequently, held against the defendants. It was held that the

agreement was admissible in evidence and decreed the suit for

eviction for arrears of rent for a period from 09.07.2009 to

10.07.2012 and for mesne profit from 10.07.2012 onwards.

Learned counsel for the appellant, at the outset made

submissions that he was confining his arguments to the issue of

limitation and with vehemence made submissions that the suit

was barred by limitation.

(5 of 18) [CFA-450/2020]

Submissions were made that the suit in question, would be

governed by Article 67 of the Limitation Act, which provides that

for a suit by a landlord to recover possession from a tenant, the

period of limitation is 12 years and the time for the same begins

to run when the tenancy is determined. It was submitted that a

bare look at the rent-note (Exhibit-28) clearly stipulates that the

suit property was let out for a period of five years w.e.f.

26.09.1991 for a fixed period of five years, which period

expired/tenancy determined on 27.09.1996, which aspect has

been reiterated in the plaint, admitted by PW-1-A.C. Chhabra,

plaintiff himself. The said aspect was also reflected from the notice

dated 29.08.2000 (Exhibit-5), wherein also it was indicated that

the tenancy of the appellant stood determined on the mid-night of

28.09.1996 and that the status of the appellant had become that

of a trespasser (tenant at sufferance) and as such the suit was

required to be filed on or before 27.09.2008 and as admittedly the

same has been filed beyond the period of limitation, the suit was

liable to be dismissed.

Further submissions were made that the payment of rent

through money-order by the appellant till the month of January,

1998, would not renew the tenancy as despite the receipt of the

rent till January, 1998, the plea was raised that the tenancy was

stood determined on 27.09.1996 and, therefore, the plea raised in

this regard is of no consequence.

Further submissions were made that once the tenancy was

for the fixed period, the same stood determined automatically

under provisions of Section 111(a) of the TP Act and from the said

date admittedly the suit was barred by limitation. It was

(6 of 18) [CFA-450/2020]

emphasized that in a case where the tenancy is for a fixed period,

the same doesn't require termination by issuing of notice under

Section 106 of the TP Act and as such the issuance of notice under

the TP Act by itself would not provide a fresh cause of action.

Feeble submissions were made claiming adverse possession

over the shop in question and indicating that the suit was barred

under Article 65 of the Limitation Act as well. It was prayed that

as the suit is ex-facie barred by limitation, the appeal be allowed

and the judgment & decree passed by the trial court be set aside.

Reliance was placed on Firm Sardari Lal Vishwa Nath & Ors.

v. Pritam Singh : AIR 1978 SC 1518.

Learned counsel for the respondent-plaintiff vehemently

opposed the submissions. It was submitted that the entire plea

sought to be raised is wholly baseless, against the law and record

of the case. It was submitted that the suit is well within the period

of limitation prescribed under Article 67 of the Limitation Act,

inasmuch as, first notice under Section 106 of the TP Act was

issued on 29.08.2000 terminating/ determining the tenancy of the

appellant and the suit was filed on 10.07.2012, which is within

limitation of 12 years as prescribed and, therefore, various

contentions sought to be made have no substance.

Reference was made to contents of Exhibit-9, which is reply

dated 29.09.2000 to the notice dated 29.08.2000 and its para-14,

17 and para-3 of the special facts to indicate that the tenancy did

not come to an end w.e.f. the expiry of period of five years in the

year 1996 and that the same continued and was terminated by

issuing notice under Section 106 of the TP Act on 29.08.2000.

(7 of 18) [CFA-450/2020]

Further submissions were made that the appellant himself

filed a suit for injunction (Exhibit-29) as late as in the year 2005

and indicated that the rent of the shop was Rs.900/- per month

and in temporary injunction application filed alongwith the suit

(Exhibit-33), again reiterated that presently the rent was Rs.900/-

per month. It was submitted that the defendant, cannot be

permitted to take the plea contrary to his own conduct, wherein

he has continued to pay the rent till the year 1998 and, therefore,

his status would be that a tenant holding over and as such the

tenancy was required to be terminated by issuing notice under

Section 106 of the TP Act, which was issued on 29.08.2000

terminating the tenancy and, therefore, view from any angle, the

suit is within limitation.

Lastly, it was submitted that the terms of the lease deed

cannot be looked into for claiming the same as fixed period

tenancy in view of provisions of Section 107 of the TP Act. It was

prayed that the appeal be dismissed.

Reliance was placed on Syed Abdul Latif v. Kundo Mal & Ors.

: AIR 1972 Raj. 284.

Learned counsel for the appellant, again made submissions

that the plaintiff cannot seek to take advantage of the plea of

deposit of rent, inasmuch as, the judgment in the case of Firm

Sardari Lal (supra), takes care of such a situation as well and,

therefore, the appeal be allowed.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record

alongwith record of the trial court.

(8 of 18) [CFA-450/2020]

The only issue for determination which arises in the present

appeal is as to whether the suit for eviction filed by the plaintiff is

within limitation as prescribed by Article 67 of the Limitation Act.

So far as the feeble submissions made based on Article 65

of the Limitation Act seeking to assert the defendant having

acquired interest in the suit property on account of adverse

possession and the suit, therefore, being liable to dismissed is

concerned, neither any pleadings in this regard have been made in

the written statement nor any evidence has been led to

substantiate such a claim and, therefore, the plea raised based on

Article 65 of the Limitation Act, has no substance.

Article 67 of the Limitation Act reads as under:-

"................................................................................................ Description of suit Period of limitation Time from which period begins to run .................................................................................................

67. By a landlord to            Twelve years.                   When the tenancy is
recover possession                                              determined.
from a tenant.                                                                                 "

A perusal of the above Article reveals that the period of

limitation for a suit by landlord to recover possession from a

tenant is 12 years and the time from which the period of 12 years

begins to run is when the tenancy is determined. Therefore, the

core issue in the present case is to decide as to when the tenancy

in the present case stood determined.

It is an admitted case between the parties that vide an

agreement dated 26.09.1991 (Exhibit-28) entered into between

the plaintiff-A.C. Chhabra and defendant-Chetan Prakash Jain, the

suit shop was let out to the defendant, inter alia, containing the

following terms:-

(9 of 18) [CFA-450/2020]

"mijksDr of.kZr nqdku eSaus fdjk;s ij izFke i{kdkj us :i;s [email protected]& v{kjh lkr lkS iPphl :i;s izfrekg dh nj ls 10% izfr'kr okf"kZd o`f) dh nj ls vFkkZr izfro"kZ [email protected]& :i;s v{kjh lkr lkS iPphl :i;s izfrekg dh nj ewy ij 10 % okf"kZd o`f) dh nj ls ikap o"kZ rd dh vof/k ds fy, yh gS o nl gtkj :i;s crkSj /kjksgj jkf'k ds Jh ,-lh- NkcMk f}rh; i{kdkj ds ikl tek djk;s gS vkSj /kjksgj jkf'k [kkyh djrs oDr nqdku f}rh; i{kdkj dk dksbZ ;fn p<+k fdjk;k cdk;k gks rks oks mles ls eqtjk dj cdk;k jkf'k eq>s vnk djsaxsA vkSj mDr /kjksgj jkf'k f}rh; i{kdkj ds ikl ikap o"kZ dh vof/k rd tek jgsxhA vkSj blls iwoZ ;fn eSaus Lo;a us nqdku [kkyh dj mudks lEHkyk nh rks oks /kjksgj jkf'k eq>s okil yksVk nsxsaA mDr vuqcUn dh vof/k ek= ikap o"kZ ds fy, gS mlds ckn eq>s gj gkyr esa mDr nqdku f}rh; i{kdkj dks [kkyh dj lEHkyk dj nsuh gSA"

A perusal of the above terms, reveal that the suit shop, was

let out by the landlord to the tenant for rent @ Rs.725/- per

month for a period of 5 years and it inter alia also indicated that if

before the end of 5 years, the tenant hands over vacant

possession, the amount of security would be returned back and it

was again reiterated that the agreement was for a period of 5

years, whereafter the shop would be handed over to the landlord.

Provisions of Section 107 of the TP Act, provides as to how

the lease needs to be made, the same reads as under:-

"107. Leases how made.-- A lease of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.

All other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. Where a lease of immoveable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee:

Provided that the State Government may, from time to time, by notification in the Official Gazette, direct that leases of immoveable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession."

(emphasis supplied)

(10 of 18) [CFA-450/2020]

A perusal of the above provision indicates that if the lease of

immovable property is for any term exceeding one year, the same

can be made only by a registered instrument. The provision

further stipulates that where a lease of immovable property is

made by a registered instrument, such instrument shall be

executed by both the lessor and lessee.

In the present case, the document in question whereby the

shop has been let out is for 5 years i.e. for a term exceeding one

year and it bears signatures of both the landlord and the tenant

i.e. lessor and lessee, however, the same has not been registered.

In view of the stipulation made in Section 107 of the TP Act,

where a lease of immovable property for any term exceeding one

year can be made only by a registered instrument, the above

document, in view of provisions of Section 49 of the Registration

Act, 1908 ('the Registration Act'), could not be received as

evidence of any transaction effecting such property subject to the

proviso that an unregistered document effecting immovable

property and required by the Registration Act or Transfer of

Property Act to be registered, may be received as evidence of any

collateral transaction not required to be effected by registered

instrument.

It may be noticed at this stage that in the present case,

when statements of plaintiff as PW-1 were being recorded on

30.04.2019, the defendant raised objection about admissibility of

the document in question (Exhibit-28), however, the application

was decided by the trial court with the following observations:-

"gLrxr okn ds vfHkopuksa] okn dh izd`fr] pkgs x;s vuqrks"k] vkSj mDr vuqca/k ds ifjo.kZu dFku (Racitals) ,oa

(11 of 18) [CFA-450/2020]

vuqca/k dh Hkkouk ds en~nsutj bl LVst ij mDr nLrkost ij izn'kZ yxk;s tkus ds laca/k esa vkifRr la/kkj.kh; ugha ik;h tkrh gSA oSls Hkh fof/k dk fl)kUr gSa fd ek= izn'kZ yxkus ls gh nLrkost lkfcr ugha ekuk tk ldrk gSA ;fn cgl vafre ds nkSjku bl laca/k esa dksbZ u;k rF; izdV fd;k tkrk gS rks U;k;ky; }kjk bl ij fopkj fd;k tk ldsxkA"

Against the said order, the defendant filed SBCW No.

707/2019, which came to be decided by a coordinate Bench on

22.11.2019 based on the submissions that the issue raised was

squarely covered by judgment in Hanuman Prasad v. Om Prakash

Nagori : SBCW No. 11543/2017 decided on 10.10.2017.

In the case of Hanuman Prasad (supra), the Court had come

to the conclusion that as the document in question did not bear

the signatures of landlord/transferor, the same was nothing more

than a rent-note and, therefore, the same could not be termed as

a lease in view of provisions of 3 rd Para of Section 107 of the TP

Act and as such the agreement executed between the parties was

on month to month basis.

Though the trial court, ordered for marking the document as

exhibit leaving it open to decide the aspect at a later stage at the

time of final arguments and the said order, was upheld by this

Court rejecting the writ petition by merely holding that the same

was covered by judgment in the case of Hanuman Prasad (supra),

the aspect of the nature of document and whether the terms

contained therein could be looked into can always be decided by

the Court even after the same has been received in evidence.

A perusal of the terms of the agreement (Exhibit-28) as

noticed hereinbefore and stipulation under Section 107 of the TP

Act that a lease of immovable property, inter alia, for any term

exceeding one year could be made only by a registered instrument

(12 of 18) [CFA-450/2020]

and as in the present case, the lease was for 5 years and the

same was not registered, apparently the transaction as contained

therein could not be received in evidence.

Further, even the proviso to Section 49 of the Registration

Act, cannot be used for proving the term of the lease exceeding

one year and as has been laid down by Hon'ble Supreme Court in

Biswabani (P) Ltd. v. Santosh Kumar Dutta & Ors.: (1980) 1 SCC

185 as under:

"11. Even if it is assumed that the appellant was put in possession for the first time under a lease which turns out to be void, the appellant came into possession of the premises with the consent of the landlords and paid rent from month to month. As the lease was to be for a period of 5 years, for want of registration no operative lease came into existence. In almost identical circumstances in Ram Kumar Das v. Jagdish Chandra Deb Dhabal Deb : AIR 1952 SC 23 an inference of tenancy ws made and the duration of the tenancy in such circumstances was held to be from month to month."

In view of the above fact situation, it is apparent that as the

document in question is a lease for period exceeding one year, the

same in absence of registration, could only be treated as month to

month tenancy.

As to how a month to month tenancy can be determined is

provided under Section 111(h) of the TP Act, which provides that

lease of immovable property determines on the expiration of a

notice to determine the lease, or to quit, or of intention to quit,

the property leased, duly given by one party to other and the

requirements of the notice have been stipulated in Section 106 of

the TP Act.

Hon'ble Supreme Court in Satish Chand Makhan & Ors. v.

Goverdhan Das Byas & Ors.: (1984) 1 SCC 369, inter alia, laid

down as under:-

(13 of 18) [CFA-450/2020]

"6....................................................................... ..........................................................................The unregistered draft lease agreement Ex. B-2 was clearly inadmissible in evidence under Section 49 of the Registration Act, except for the collateral purpose of proving the nature and character of possession of the defendants. The documents Ex. B-2 was admissible under the proviso to Section 49 only for a collateral purpose of showing the nature and character of possession of the defendants. The proviso to Section 49 was however not applicable in the present case inasmuch as the terms of a lease are not a "collateral purpose" within its meaning. It follows that the unregistered draft lease agreement Ex. B- 2 was inadmissible in evidence to prove the transaction of lease. It was also ineffectual to create a valid lease for a renewed term of nine years for want of registration as required under Section 17(1)(d) of the Registration Act."

(emphasis supplied)

Further Hon'ble Supreme Court in Anthony v. K.C. ITTOOP &

Sons & Ors.: (2000) 6 SCC 394, in a case where the lease deed

was for a period of 5 years and monthly rent was fixed but the

same was not registered, inter alia, laid down as under:-

"15..................................................................... .......................................................................... A transfer of right in the building for enjoyment, of which the consideration of payment of monthly rent has been fixed, can reasonably be presumed. Since the lease could not fall within the first paragraph of Section 107 it could not have been for a period exceeding one year. The further presumption is that the lease would fall within the ambit of residuary second paragraph of Section 107 of the TP Act.

16. Taking a different view would be contrary to the reality when parties clearly intended to create a lease though the document which they executed had not gone into the processes of registration. That lacuna had affected the validity of the document, but what had happened between the parties in respect of the property became a reality. Non-registration of the document had caused only two consequences. One is that no lease exceeding one year was created. Second is that the instrument became useless so far as creation of the lease is concerned. Nonetheless the presumption that a lease not exceeding one year stood created by conduct of parties remains un-rebutted."

(emphasis supplied)

Therefore, in the present case, once the term of lease as

indicated in Exhibit-28 cannot be looked into even for collateral

purpose and the tenancy in absence of the document having been

(14 of 18) [CFA-450/2020]

registered would be month to month, the same could only be

determined by issuance of notice under Section 106 read with

Section 111(h) of the TP Act and provisions of Section 111(a) of

the TP Act, would have no application, which provides for

determination of lease of an immovable property by afflux of time

limited thereby, once the time limited thereby cannot be looked

into for lack of registration and the tenancy is month to month

only, the provision under Section 111(a) of the TP Act would have

no application.

Various submissions made by learned counsel for the

appellant heavily relying on term of 5 years indicated in the

Exhibit-28 and that the period of 5 years came to an end on

27.09.1996 and, therefore, by afflux of time under Section 111(a)

of the TP Act, the lease stood determined which essentially is

based on the fact that the lease in question is a valid lease i.e. in

consonance with provisions of Section 107 of the TP Act, which as

noticed hereinbefore fails, inasmuch as, the same required

registration and having not been registered was merely a month

to month tenancy.

The submissions made based on the indications made in the

notice dated 29.08.2000 (Exhibit-5) on behalf of the plaintiff-

landlord, repeatedly referring to the period of 5 years in the

Exhibit-28 and asserting that the lease came to an end at the end

of 5 year period and that ever since the defendant is tenant by

sufferance, is required to be considered in context.

Insofar as the legal stand of the defendant and the factual

position is concerned, the same is contained in reply dated

(15 of 18) [CFA-450/2020]

29.09.2000 (Exhibit-9) to the notice dated 29.08.2000 (Exhibit-5),

which reads as under:-

"14- ;g fd uksfVl dk pj.k Øe&12 Lohdkj ugha gSA esjs i{kdkj }kjk vkids i{kdkj dks tuojh&98 rd dk fdjk;k t;sZ ,e- vks- izsf"kr dj fn;k gSA tks vkids i{kdkj us izkIr Hkh dj fy;k gSA ekg Qjojh ekpZ] 98 ds fdjk;s dk ,e- vks- vkids i{kdkj us ysus ls badkj dj fn;kA blfy;s okil vk x;kA esjs i{kdkj ds ftEes [email protected]@94 ls fdjk;k cdk;k gksus dh ckr loZFkk vlR; gSA 17- ;g fd uksfVl dk pj.k Øe&15 Lohdkj ugha gSA [email protected]@94 ls esjs i{kdkj ds ftEes fdjk;k ckdh ugha gSA Qjojh 98 ls fdjk;k ckdh gS tks vkids i{kdkj }kjk ugha ysus ds dkj.k p<k gSA vki vius i{kdkj dks funsZf'kr djsa fd og esjs i{kdkj ls Qjojh 98 ls fdjk;k izkIr djds esjs i{kdkj dks jlhn ns nsosaA

fo'ks"k rF; %& 3- ;g fd esjs i{kdkj }kjk vkids i{kdkj dks lnSo fu;fer fdjk;k vnk fd;k tkrk jgk gSA vkids i{kdkj us vxLr 96 rd dk fdjk;k esjs i{kdkj ls izkIr fd;k Fkk mlds ckn vkids i{kdkj }kjk flrEcj 96 dk fdjk;k VsUMj djus ij ysus ls badkj dj fn;k blfy;s esjs i{kdkj us t;sZ ,e- vks- fdjk;k Hkstuk izkjaHk dj fn;k Fkk tks tuojh 98 rd dk fdjk;k t;sZ ,e- vks- vkids i{kdkj }kjk izkIr fd;k tkrk jgk ijUrq ekg Qjojh] ekpZ 98 dk fdjk;k dk ,e- vks- ysus ls badkj gks tkus ds dkj.k okil vk x;k rRi'pkr esjs i{kdkj us vkids i{kdkj dks cSad [kkrk la[;k o cSad dk uke crkus gsrq jftLVMZ Mkd ds t;sZ uksfVl Hkh izsf"kr fd;k ijUrq og uksfVl Hkh vkids i{kdkj us ysus ls badkj dj fn;kA vr% tokc uksfVl izsf"kr dj lwfpr fd;k tkrk gS fd vki vius i{kdkj dks lnijke'kZ nsosa fd os esjs i{kdkj ds fo:) dksbZ Hkh >wBh dk;Zokgh U;k;ky; esa] ijs'kku djus ds fy;s ugha djsa rFkk Qjojh 98 ls fdjk;k [email protected]& :i;s ekfld ls izkIr dj jlhn nsosa] Hkfo"; esa Hkh fdjk;k izkIr djrs jgsa o jlhn nsrs jgsa rFkk esjs i{kdkj ls tcjnLrh ifjlj [kkyh djkus dk iz;kl u djsaA blds ckotwn Hkh esjs i{kdkj ds fo:) fdlh Hkh izdkj dh >wBh dk;Zokfg;ka U;k;ky; esa izLrqr dh xbZ rks mUgsa iwjh 'kfDr ds lkFk dUVsLV fd;k tkosxkA ftlds leLr gtsZ [kpsZa dh olwyh vkids i{kdkj ls dh tkosxh uksV dj ysaA"

(emphasis supplied)

Further it is also an admitted position that the plaintiff, in his

cross-examination indicated as under:-

";g lgh gS fd eSaus fnukad 27-09-1996 dks fdjk;snkjh lekIr dj nh Fkh vt[kqn dgk mlds ckn Hkh og fdjk;k nsrk jgkA 27-09-1996 ds ckn tks fdjk;k vnk djus ds ckjs esa xokg us mRrj fn;k fd eSaus esjs vf/koDrk lqJh lqfurk 'kekZ ds ek/;e ls

(16 of 18) [CFA-450/2020]

lHkh izfroknhx.kksa dks uksfVl fnukad 29-08-2000 dks fn;k Fkk bl lwpuk i= ds tokc esa izfroknh la[;k 1 o 2 Jh egs'k th 'kekZ ds ek/;e ls tokc is'k fd;k gS ftlesa mUgksaus izfroknhx.kksa }kjk tuojh 1998 rd dk fdjk;k vnk djuk crk;k ftlls geus Lohdkj fd;kA bldh jlhn ugha gSA"

(emphasis supplied)

In the cross-examination, the plaintiff indicated that on

27.09.1996, he had terminated the tenancy and thereafter also

the tenant continued to pay the rent and also accepted that the

rent was sent till January, 1998.

As observed hereinbefore, the entire stand taken by the

plaintiff has to be examined in the context, inasmuch as, the

stand of the tenancy coming to an end in the year 1996 and the

appellant becoming tenant at sufferance, is essentially an

assertion on a point of law, which as determined hereinbefore is

found to be incorrect, inasmuch as, the document (Exhibit-28) in

absence of registration could not create tenancy for a term beyond

one year and is only a month to month tenancy.

However, insofar as the stand taken by the defendant is

concerned, the same apparently is factual wherein he has sent

rent for the period upto January, 1998 by money order and the

same has been accepted by the plaintiff-landlord and as such on

the aspect of payment of rent till January, 1998, the fact cannot

be denied.

Besides the above, insofar as the defendant is concerned,

though it is open for him to take contradictory pleas, however, his

own stand in the suit filed by him Exhibit-29 seeking injunction

regarding his status as tenant indicating that presently rent is

Rs.900/- and as the said suit was filed in the year 2005, on that

(17 of 18) [CFA-450/2020]

count also, the filing of the suit from defendant's stand point also,

would be within limitation.

Strong reliance has been placed by the counsel for the

appellants-defendants on judgment of Hon'ble Supreme Court in

the case of Firm Sardari Lal (supra), wherein, it has been laid

down as under:-

"18. Having examined the matter on authority and precedent it must be frankly confessed that no other conclusion is possible on the first principle. Lease of urban immovable property represents a contract between the lessor and the lessee. If the contract is to be put to an end it has to be terminated by a notice to quit as envisaged under S. 106 of the Transfer of Property Act. But it is equally clear as provided by S. 111 of the Transfer of Property Act that the lease of immovable property determines by various modes therein described. Now, if the lease of immovable property determines in any one of the modes prescribed under S. 111, the contract of lease comes to an end, and the landlord can exercise his right of re-entry. This right of re- entry is further restricted and fettered by the provisions of the Rent Restriction Act. Nonetheless the contract of lease has expired and the tenant lessee continues in possession under the protective wing of the Rent Restriction Act until the lessee loses protection. But there is no question of terminating the contract because the contract comes to an end once the lease determines in any one of the modes prescribed under S. 111. There is, therefore, no question of giving a notice to quit to such a lessee who continued in possession after the determination of the lease, i.e. after the contract came to an end under the protection of the Rent Restriction Act. If the contract once came to an end there was no question of terminating the contract over again by a fresh notice. Therefore, both on principle and authority the contention of Mr. Mahajan cannot be accepted."

The said judgment was cited by counsel for the appellant on

the assumption that the tenancy in question stood determined by

afflux of time under Section 111(a) of the TP Act, however, as the

said contention stands negated hereinbefore on account of the fact

that the tenancy in question cannot be accepted for a fixed term

(18 of 18) [CFA-450/2020]

of 5 years on account of lack of registration, the same would not

stood determined by afflux of time and the same being month to

month tenancy required determination by notice under Section

106 of the TP Act, which was issued for the first time on

29.08.2000 (Exhibit-5). As such the law laid down in the case of

Firm Sardari Lal (supra) would have no application to the facts of