Gangayya and Another vs S. Mandan Chand Samdaria and Others

These two second appeals have been filed two separate defendants. The respondents herein are the plaintiffs in the suit. The suit was filed for

recovery of possession after removing the superstructure and for costs. It was the case of the plaintiffs that the defendants-appellants were the

tenants of two separate portions of the suit land on a monthly rent of Rs. 4/- and that the tenancy was terminated by notice dated 20-10-1964.

The defendants pleaded that the tenancy was from 1-4-1955, prior to the coming into force of the Madras City Tenants Protection (Amendment)

Act, 1955, and that, therefore, they were entitled to the protection u/s 9 of the Act. The only question therefore before the courts below was

whether the tenancy commenced prior to 12-9-1955, on which date the Madras City Tenants Protection (Amendment) Act came into force as

contended by the defendants or whether the tenancy was created only on and from 1-4-1956 as contended by the plaintiffs.

The defendants apart from their oral evidence relied on Ex. B, 19 dated 1-4-1955 in support of their contention that the tenancy commenced

from 1-4-1955 and not from 1-4-1956. Ex. B-19 is a lease deed executed between the first defendant and the power of attorney agent of the

predecessor in title of the plaintiffs. This deed is signed by the agent of the lessor alone and it has not been signed by the defendants. It purports to

be a lease for a period of three years, but it has not been registered. On the ground that Ex. B-19 is an inchoate or incomplete document and also

on the ground of want of registration the courts below have held that the document could not be relied on for any purpose.

In this second appeal, the learned counsel for the appellants contended that though Ex. B-19 could not be relied on for the purpose of proving a

lease it could be relied on for a collateral purpose of proving the nature and character of the possession of the land in the hands of the defendants

and to find out from what date the possession was obtained by the defendants. In my opinion, the learned counsel for the appellants is well-

founded in this contention. Under paragraph 3 of Section 107 of the Transfer of Property Act, where a lease of an immovable property is made by

a registered document, such instrument shall be executed by both the lessor and the lessee. It has been held by a Division Bench of the Calcutta

High Court in Ram Abatar Mahato Vs. Sm. Shanta Bala Dasi and Others, , that the requirements of Section 107 of Joint execution by the lessor

and the lessee applies only to a case where a lease of an immovable property is made by a registered instrument. Apart from this, an instrument

signed by the lessor alone or by the lessee alone would operate as an agreement to lease or a rent note.............. Hari Prosad Agarwalla and

Another Vs. Abdul Haq and Others, . Therefore, Ex. B-19 could also be relied on by the lessee as a defense to the action for eviction subject to

the other conditions in Section 53-A of the Transfer of Property Act. Even otherwise though Ex. B-19 is not admissible for proving the terms of

the tenancy, in my opinion, it could be relied on for the purpose of proving the nature and character of possession of the defendants and also the

date from which such possession in the hands of the defendants commenced. This view is supported by the ratio of the decision in In Re: Vadasseri

Tharawattil Karnavan and Manager Ittichathara Valia Mannadiar, That was a case where a raji decree, under which defendants were allowed to

be in possession of the properties as permanent tenants subject to a condition that they should not mortgage or assign or otherwise alienate the

property, was not registered. The raji decree was therefore held to be inadmissible in evidence. But the learned Chief Justice, speaking for the

Bench held ""though Ex. A-1 (raji decree) was inadmissible for want of registration, it is now well-established that such a document can be looked

into for other and collateral purposes particularly to ascertain the nature of possession with a party obtained under that document"". In particular,

the Bench relied on the date on which the defendants in that case got possession under the raji decree for the purpose of holding that the

defendants had perfected the right to permanent lease by adverse possession. The learned Judges have considered that the date of the document

or the date from which the possession was obtained under an invalid document is a collateral purpose and for finding out the date of

commencement of possession the invalid document could be relied on.

In this case, Ex. B-19 is dated 1-4-1955 and it has been signed by the power of attorney agent of the lessor. The defendants are therefore

clearly entitled to rely on this date in support of their contention. As already stated, there was no dispute as to the tenancy because the suit itself is

based on the tenancy and termination of the tenancy. But the only point was as to when the tenancy commenced. In my opinion, the defendants are

entitled to rely on Ex. B-19 for the purpose of proving the commencement of possession as tenants. It may also be mentioned that in reply to the

notice of termination dated 20-10-1964 issued by the plaintiffs, the defendants sent a reply notice dated 27-10-1964 in which they specifically

stated that the tenancy commenced before 12-9-1955, when the Madras City Tenants Protection (Amendment) Act 1955 came into force, and

that, therefore, they are entitled for protection under the amended Act. In spite of this specific case of the defendants the plaintiffs in the plaint did

not state as to when the tenancy commenced. It merely stated that the defendants were tenants under the plaintiffs, that the plaintiffs had terminated

their tenancy by notice dated 20-10-1964 and that therefore the plaintiffs were entitled to recover possession. The plaintiffs have not produced

their account books to prove that the tenancy commenced only from 1-4-1956. It is true that the onus of proving that the defendants were entitled

to the protection under the City Tenants Protection Act was on defendants, but they have discharged that onus by producing evidence in support

of their case that the tenancy commenced on and from 1-4-1955. There is no evidence contra on behalf of the plaintiffs to disprove that evidence

of the defendants.

For the foregoing reasons, I hold, reversing the findings of the courts below, that the tenancy commenced on and from 1-4-1955 and that,

therefore, the defendants-appellants are entitled to the protection under the Madras City Tenants Protection Act. In view of the above finding, it is

not necessary to consider the alternative case of the defendants based on the provisions of Section 53-A of the Transfer of Property Act. The

second appeals are, therefore, allowed and the decree of the courts below are set aside. The suit will have to be taken on file and disposed of on

the basis that the defendants are entitled to the benefits of the City Tenants Protection Act. The defendants will be entitled to their costs in the

lower appellate court and in these second appeals. No leave.

Appeal allowed.