Subhash Chandra vs Gopal Krishna Gangal and Another

Hon''ble Dilip Gupta, J.—This petition seeks the quashing of the order dated 1st December, 2011 passed by the Revisional Court on the application filed by the petitioner for being impleaded as a revisionist.

It transpires from the records of the writ petition that SCC Suit No. 13 of 1993 was filed by Gopal Krishna Gangal (respondent No.1 in this petition) against Rakesh Kumar Sharma (respondent No.2 in this petition) for eviction and recovery of arrears of rent. The Suit was decreed by the Judge, Court of Small Causes, Aligarh on 7th September, 2002 against which Rakesh Kumar Sharma filed Revision on 7th November, 2002 which was registered as Civil Revision No. 28 of 2003 which is pending disposal.

During the pendency of the Revision, the petitioner moved an application for being impleaded as a revisionist for the reason that he is in possession of the shop on the basis of a lease deed dated 26th September, 2002 executed by the landlord Gopal Krishna Gangal in his favour after Rakesh Kumar Sharma handed over possession of the shop to him on 26th September, 2002.

The Revisional Court has rejected this application for the reason that the document dated 26th September, 2002 said to have been executed by Gopal Krishna Gangal in favour of Rakesh Kumar Sharma is not a registered document and in coming to this conclusion the Revisional Court has relied upon the decision of this Court in Furkan Ahmad Vs. Sayed Ahmed Raza and others, .

Learned counsel for the petitioner has submitted that the Revisional Court committed an illegality in rejecting the application. It is his submission that the Court below was not justified in placing upon the decision in the case of Furkan Ahmad (supra) in the facts and circumstances of this case.

Sri D.R. Sharma, learned counsel appears for the respondents and has submitted that the impugned order does not call for any interference by the Court.

It is submitted by learned counsel for the petitioner that the judgment debtor Rakesh Kumar Sharma handed over possession of the disputed shop to the landlord on 25th September, 2002 and the landlord executed the deed in favour of the petitioner on 25th September, 2002 and, therefore, the petitioner should have been impleaded in the revision.

It is not possible to accept the contention of learned counsel for the petitioner. If the judgment debtor had handed over possession of the shop to the landlord on 25th September, 2002, he would not have filed the revision in November, 2002. This apart, in view of the judgment of this Court in Furkan Ahmad (supra), the Revisional Court committed no illegality in rejecting the application since the document on the basis of which the petitioner claims to be a tenant is an unregistered document.

The observations of the Court are as follows:

The contention of the applicant that the decree in the suit shall affect his tenancy right in the disputed house is untenable. In execution of the decree of ejectment against the defendant-opposite parties Nos. 2 and 3 the applicant cannot be evicted from the house in dispute if he has got any independent tenancy right therein, as alleged. He will have a right to resist execution of the decree, if any, to protect his possession, based on his own independent right as tenant of plaintiff-opposite party No.1 in the disputed house inviting investigation of his right to possession under the provisions of Rules 97 and 98 of Order XXI of the Code. Even if the applicant is, some how, illegally dispossessed from the disputed house, he will have a remedy under Rules 99 and 100 of Order XXI of the Code.

The circumstance of non-registration of the alleged agreement of tenancy set up by the applicant has very rightly been taken into consideration by the Court below for rejecting his plea for impleadment. Section 17 of the Registration Act. 1908, hereinafter called the Act, mandates compulsory registration of documents enumerated therein. Clause (b) of sub-section (1) of Section 17 of the Act, read with the amendment made by the U.P. Act No.57 of 1976, provides that non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, shall be compulsorily registrable. It is disputed that the alleged agreement of tenancy in favour of the applicant is a non-testamentary instrument purporting to create tenancy right and interest in the disputed house. It, therefore required registration. In the absence of its registration the alleged agreement could not be received in evidence by the Court below. The Court below was well within the jurisdiction and acted quite legally in taking into account the circumstance of non-registration of the applicant''s alleged tenancy agreement while considering legality and propriety of his being impleaded as defendant in the suit.

There is, therefore, no illegality in the order passed by the Revisional Court.

The writ petition is, accordingly, dismissed