Deen Dayal and Another vs M. Sambaiah

Y.V. Narayana, J.—C.R.P. No. 3168 of 1993:

This revision petition is filed by the defendants in OS. No. 524 of 1993 on the file of the II Additional Munsif-Magistrate, Warangal against the order dated 25-8-1993 made in LA. No. 762 of 1993.

The brief facts of the case are: The plaintiff (respondent herein) filed the suit for specific performance of lease agreement dated 30-9-1988 executed by the defendants (petitioners herein). The plaintiff made the following averments in the plaint. He is the tenant of the defendants, living in their house on a monthly rental of Rs. 500/-. Subsequently the defendants filed R.C.C. No. 26 of 1983 before the Rent Controller, Warangal for the eviction of the plaintiff. Ultimately the matter was settled, resulting in the execution of the lease agreement dated 30-9-1988 executed by the defendants in favour of the plaintiff. Since the plaintiff suspected the bona fides of the defendants, he got issued a suit notice dated 31-6-1993. The defendants managed to avoid receiving of the same. Again the plaintiff got issued the notice on 7-7-1993 which was received by the defendants on 8-7-1993. The defendants sent a reply notice on 10-7-93. Therefore the plaintiff filed the suit. Along with the plaint, the plaintiff also filed LA. No. 762/93 for a temporary injunction restraining the defendants from interfering with his possession of the suit mulgi by execution of the decree dated 79-9-88.

The defendants filed counter denying in general the plaint allegations and raising the following contentions. The defendants got only 1 /4th share in the suit property. Therefore the contention of the plaintiff that the suit property belongs to the defendants is not correct. The alleged lease deed is bogus, illegal and cannot be enforced. The defendants never agreed to let any portion of the suit property to the plaintiff. They never tried to avoid receipt of the suit notice. The suit for specific performance of alleged contract is not maintainable. The plaintiff is bound by the decree in R.C.C. No. 26 of 1983 and cannot go behind the decree. There is no prima facie case or balance of convenience in favour of the plaintiff. The plaintiff has not come to the Court with clean hands. Therefore they prayed that the petition may be dismissed with costs.

When the plaintiff sought to mark the lease deed, the defendants raised objection on the admissibility of the said agreement on the following grounds. The document is an agreement of lease. Hence it is compulsorily registrable u/s 17 of the Registration Act. Besides that, since it is a lease deed, the stamp duty payable under Article 31 of Schedule I-A of the Stamp Act is the duty as a conveyance for consideration equal to the amount or value of the average annual rent reserved; but the stamp duty paid is only Rs. 5/- which is inadequate. Therefore the lease deed cannot be admitted unless the required stamp duty is paid. The plaintiff contended that the document cannot be considered as lease deed inasmuch as the plaintiff did not enter into the premises as tenant through that document. Since it is only an agreement the stamp duty payable is Rs. 5 /- under Article 6 of Schedule I-A. The Court below, after hearing the Counsel for both sides, directed the plaintiff to pay the, stamp duty in accordance with Article 31 of Schedule I-A of the Stamp Act for purpose of receiving the agreement in evidence. Aggrieved by the said order, the defendants filed the present revision petition.

C.R.P.No.3653 of l993:

This revision petition is filed by the petitioner-tenant against the order dated 8-10-1993 made in E.A. No. 213/93 in E.P. No. 167/83 in R.C.C. No. 26 of 1983 on the file of the Prl. District Munsif, Warangal.

The brief facts leading to filing of this revision petition are as under: The respondents filed R.C.C. No. 26/83 seeking eviction of the petitioner-tenant on the ground of default in payment of rents etc. Before trial itself, the dispute was compromised. It is agreed that the tenant shall be continued on a monthly rental of Rs. 500/- from 1-9-88 to 31-8-93 and for a further period of five years from 1- 9-93 to31-8-98 on a monthly rent to be fixed by mutual discussions and consent. The decree in RCC 26/83 is non-est and void and is unenforceable and inexecutable. The memorandum of compromise is nothing but a lease agreement simpliciter. It belies the allegation of the respondents that they require the suit premises for their personal business. The petitioner is a statutory tenant entitled to continue to occupy the suit premises in his own right. Hence the petitioner-tenant filed the petition under Sections 47 and 151 C.P.C. read with Section 20 of the A.P. Buildings (Lease, Rent and Eviction) Control Act to hold that the decree in RCC No. 26/83 dated 29-9-1988 is void and unenforceable and that no warrant of execution shall be issued and stay of the execution. The respondents-landlords denied the petition with the following contentions. There is no need of any trial or separate finding on the allegations made in the RCC 26/83. No law gives any right in favour of the petitioner to stay or restrain the execution of a lawful decree. Section 47 CPC does not attract the matter in question. Without admitting the contents and execution of the lease agreement, the same is unenforceable for want of registration under Sections 17 and 49 of the Registration Act. Thus they prayed for dismissal of the said petition.

The trial Court, after hearing both sides, dismissed the petition holding that there is no need for the respondents-landlords to initiate proceedings for eviction u/s 10 of the A.P. Buildings (Lease, Rent and Eviction) Control Act. Aggrieved by the said order, the tenant-petitioner filed the present revision petition.

Both the C .R.Ps. were heard together with the consent of counsel for both sides and are being disposed of by a common order.

C.R.P. No. 3168 of 1993:

The learned Counsel for the petitioners contended that the Court below erred in holding that the document in question is admissible, though it is compulsorily registrable, in view of Section 49 of the Registration Act. On the other hand the learned Counsel for the respondent contended that the document, though unregistered, is admissible in evidence as it does not create any right within the meaning of Section 17(1)(b) of the Registration Act and it is brought into existence in pursuance of a compromise decree. In support of his contention he relied upon the decision reported in Basantlal (dead) by his Legal Representatives v. State of U.P 1981(2)RCJ 331. In that case the suit was compromised on 2-6-1941 and on the same date a fresh lease was executed and the terms of the lease were incroporated in the compromise. The Supreme Court held:

"The terms of the lease formed part of the decree based on compromise Ex.31, that the compromise related to the property which was the subject- matter of the suit and that, therefore, the compromise did not require registration."

The learned Counsel for the petitioners contended that the compromise decree in the present case was passed on 29-9-1988 whereas the agreement to lease the Immovable property was executed on 30-9-1988; that the terms of the compromise decree are not incorporated in the agreement of lease; that as per the compromise decree the petitioners (sic. respondent) are (sic. is) entitled to continue for five years only i.e., from 1-9-1988 to 31-8-1993 but as per the lease agreement a right and interest is created in favour of the petitioners (sic. respondent) to continue on lease for a further five more years i.e., upto 31-8-1998. It is specifically mentioned in the memo of compromise:

"This compromise to grant fresh lease for five years as above will be given effect to by the petitioners by duly executing and registering a lease deed in favour of R-2 at his (latter''s) cost and expense, and as soon as may be within a fortnight from to-day. The respondent, unless and until there is any fresh lease contract granted to him by the petitioners, shall vacate the suit leased mulgi by and on 1-9-1993."

The above condition of the compromise clearly insists upon not only the execution of the lease deed, but also registration of the same within a fortnight from 29-8-1988, the date of compromise. Moreover the compromise stipulates the lease period upto 31-8-1993 only; whereas the agreement of lease provides lease for a further period of five more years i.e., upto 31-8-1998, which term does not find place in the compromise memo. Though the lease agreement was brought into existence in pursuance of the compromise, since it contains several other terms and conditions which do not find place in the compromise and since it creates a right and interest in immovable property in favour of the petitioners (sic. respondent) to continue for a further more five years i.e., upto 31-8-1998, the agreement of lease undoubtedly attracts the provisions of Section 17(1)(b) of the Registration Act and requires compulsory registration. This view of mine is fortified by the decision of Subbarao, J. (as he then was) rendered in K. Mahammad Ghouse Sahib Vs. Jamila Bi and Others, wherein it was held as under:

"that the document created an interest in Immovable property and therefore should have been registered and not having been registered it could not affect Immovable property nor could be used in evidence and the mere fact that a provision was inserted enabling the parties to get a proper partition deed written upon stamp paper and get the same registered did not take away the document from the mischief of Ss.17 and 49."

In view of the above I hold that the document sought for admission in evidence creates an interest and a right in Immovable property in favour of the petitioners (sic. respondent) within the meaning of Section 17(1)(b) of the Registration Act and therefore it has to be registered compulsorily. As the document is not registered, it is inadmissible in evidence and cannot be received. Therefore I set aside the order of the Court below passed in I.A.No.762 of 1993 dated 25-8-1993 and allow the C.R.P. 3168 of 1993, but without costs.

C.R.P.No.3653 of l993:

The learned Counsel for the petitioner-tenant contended that the decree passed by the learned Rent Controller, Warangal in R.C.C. No. 26 of 1983 dated 29-9-1988 is void and unenforceable and that no warrant of execution shall be issued. In support of his contention he relied upon the decision reported in Ferozi Lal Jain Vs. Man Mal and Another, wherein it was held that where the Court had proceeded solely on the basis of the compromise arrived at between the parties, the Court was not competent to pass the decree and hence the decree under execution must be held to be a nullity. The learned Counsel for the respondents resisted this contention by relying on the decision reported in K.K. Chari Vs. R.M. Seshadri, wherein the decision in Ferozi Lal''s case (3 supra) was also considered and held as under:

"Satisfaction of the Court, which is no doubt a pre-requisite for the order of eviction, need not be by the manifestation borne out by a judicial finding. If at some stage the Court was called upon the apply its mind to the question and there was sufficient material before it, before the parties invited it to pass an order in terms of theri agreement, it is possible to postulate that the Court was satisfied about the grounds on which the order of eviction was based."

In view of the latter decision, I see no force in the contention of the learned Counsel for the petitioner. In view of the above and also in view of the C.R.P. No. 3168 of 1993 being allowed, this C.R.P. No. 3653 of 1993 is dismissed, but without costs. Time for eviction is six months.