S.P. Bhargava, J.
The respondent Holaram instituted a suit against the appellants claiming, inter alia, a decree against them for eviction from the suit land, more particularly mentioned in paragraph I of the plaint. The second appellant was joined in the suit on the allegation that the first defendant who was the tenant of the plaintiff had sublet the suit land to him.
. The material facts are these The suit land and some other land adjoining it originally belonged to two brothers Moula Bux and Rahim Bux. They inducted the first defendant as their tenant on the suit land under an unregistered lease deed Ex. D-3, dated 29-3-1952. The tenancy of the first defendant commenced from 1-4-1952. Ex. D-3 contains a stipulation that the tenancy shall be for a fixed term of twenty years and that the tenant at his option shall be able to renew it for a further term of ten years. The stipulated rent was Rs. 50 per month. Moula Bux and Rahim Bux sold the suit land as also the other land adjoining it under the sale deed dated 26-10-1956 to the plaintiff Holaram and Khemchand. Subsequently on 31-12-1961 a partition took place between the two purchasers and the suit land which admeasures 100'' x 110'' fell to the share of the plaintiff and thus the first appellant became a tenant of the plaintiff. It is not in dispute that the payment of rent at the stipulated rate of Rs. 50 per month was made to the plaintiff-respondent from 1-1-1962 upto the month of October 1963 by the first defendant through the second defendant. On 18-11-1963 the plaintiff sent a notice by registered post determining the tenancy of the first defendant as from 31-1-1964. On failure of the defendants to vacate the land, the plaintiff instituted the suit.
The trial Court dismissed the suit holding that the plaintiff was debarred from enforcing any right in respect of the property on the basis of the provisions contained in section 53A of the Transfer of Property Act though the trial Court had held that the plaintiff had succeeded in establishing that he required the suit land bona fide for the purposes of his residence and starting business.
The lower appellate Court, however, decreed the claim holding that the tenancy of the first defendant was from month to month; that the said tenancy was validly determined by plaintiff''s notice dated 18-11-1963; that the defendant was not entitled to prove the terms of lease as incorporated in document Ex. D-3 as the lease contemplated under the said document was for a term of twenty years with a clause for renewal for a further term of ten years at the option of the lessee and u/s 107 of the Transfer of Property Act such lease could only be made by a registered document. On this reasoning, the lower appellate Court decreed the plaintiff''s claim for eviction and other relief''s which were sought by him. Feeing aggrieved, the defendants have filed this appeal.
Having heard the learned counsel on both sides, I am of the view that this appeal must be allowed. In my opinion, the lower appellate Court has erred in holding that the tenant-appellant was not entitled to rely on and prove the contract incorporated in the lease-deed Ex. D-3 which fulfils all the conditions laid down in section 53A of the Transfer of Property Act. Section 53-A reads thus:
Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continued in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.
It is clear that the conditions necessary for making out the defence of part performance to an action for ejectment by the owner are;
(1) That the transferor has contracted to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty;
(2) That the transferee has, in part performance of the contract, taken-possession of the property or any part thereof, or the transferee, being already in possession continues in possession in part performance of the contract;
(3) That the transferee has done some act in furtherance of the contract ; and
(4) That the transferee has performed or is willing to performing his part of the contract.
It is not seriously disputed on behalf of the respondent that all these conditions have been complied with by the first defendant in the present case. The first defendant is proved to have been in occupation of the land in suit as tenant from 1-4-1952 from which date the contract contained in Ex. D-3 operated. He is further shown to have continued in possession of the suit land in part performance of the contract ever since. All the terms of the lease are ascertainable with reasonable certainty from the document Ex. D-3. The first defendant has performed his part of the contract by paying rent as stipulated in Ex. D-3 and is further shown to be willing to perform his part of the contract.
The amending Act of 1929 introduced the equity of part performance into Indian Law by enacting section 53A and reinforced the position by amending the Registration and Specific Relief Acts. After the introduction of section 53A, the defendant in a suit for ejectment is entitled to rely upon his contract for transfer provided the conditions of the section are fulfilled (see Dammulal Babulal Jain v. Mohammad Bhai Haji Suleman Kacchi 1955 N L J 742 : AIR 1955 Nag. 306 ;
A lease is a transfer of property and section 53A applies to an unregistered instrument of lease (see Mt. Radhabai v. N.J. Nayadu 1951 NLJ 81 : AIR 1951 Nag. 285 ;
The lower appellate Court unfortunately did not examine the amendment which was introduced in section 49 of the Registration Act itself. Section 49 of the Registration Act which enacts that a document required to be registered but not registered, shall net affect the immoveable property comprised therein, or be received as evidence of any transaction affecting such property, has been amended and a proviso inserted to permit such a document being received in evidence in a suit for specific performance or "as evidence of part performance of a contract for the purposes of section 53A of the Transfer of Property Act, 1882." It is clear from the said proviso that section 49 does not prevent an unregistered agreement or deed being admitted in evidence as a contract (see The Transfer of Property Act by Multa, Fifth Edition, at page 290).
If the terms of contract incorporated in the document Ex. D-3 were ignored, the very purpose for which section 53A had been enacted would be defeated as the said section seeks to protect the possession of a defendant against whom a suit for ejectment has been filed. ''What it purports to do is to prevent the plaintiff from recovering possession of the property already transferred, to the defendant (see Nanasaheb Gujaba Bankur v. Appa Gam Banker and others (supra),
In
It these conditions are fulfilled then notwithstanding that the contract, though requited to be registered, has not been registered, or where there is an instrument of transfer, taut ''he transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him is debarred from enforcing against the transferee any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract.
When the observations made by their Lordships are applied to the facts of this case, it follows that the plaintiff-respondent is debarred from enforcing his right of taking possession from the first defendant before the expiry of the term mentioned in the contract. It is also clear from the observations made by their Lordships that unless the terms of the contract were read in evidence, it could never be found as to when the plaintiff would be entitled to enforce his right under the contract against the defendant.
The lower appellate Court relied on the decisions reported in
Reliance was also placed on behalf of the firm on the decision of this Court in Ram Kumar Das v. Jagdish Chandra (supra) in which case also, a registered Kabuliyat executed by the lessee did not comply with the requirements of section 107 of the Transfer of Property Act, and on the facts of the case it was held that, though under the Kabuliyat the land was leased out for a period of ten years, the lease in fact must be presumed to be from month to month u/s 106 of that Act. The facts of that ease were, however, quite different. In that case, the terms of the lease were not ascertained from the Kabuliyat in which the period of lease was fixed at 10 years. The terms of the lease were ascertained from other documents, including receipts for rent paid by the lessee to the lessor, and on the basis of that evidence it was found that a lease had come into existence under which rent was being paid monthly. No such circumstances appear in the case before us. In fact, it was at no stage pleaded and no evidence was led to show, that independently of the three documents Exts P. 1, P. 2 and P. 3, there was material from which it could be inferred that a lease from month to month had come into existence between the firm and the company. No such point was urged either in the trial Court or before the High Court and no such finding of fact exists. In these circumstances, section 306 of the Transfer of Property Act would clearly be inapplicable, and the lease has to be held to be for a period exceeding one year for the reasons given by us above.
In Baideoprasad v. Dashrathlal (supra) the main question which arose for consideration of the Court was as to whether the admission orally made by the landlord regarding the tenancy being annual could be proved by the oral admission of the landlord himself. In that case there was no document in writing evidencing or creating the lease. The question there for consideration was not one u/s 53A. Their Lordships simply held that in view of section 49 of the Registration Act, the oral admission of the landlord was shut out. In Birdichand Sobharam Pawar v. Manaklal Pyarelal Halwai and others (supra). reference was made to Baldeoprasad v. Dashrathlal (supra). No question about the applicability of section 53A arose.
I, therefore, hold that the defendants were entitled to prove the contents of Ex. D-3 for supporting their contention that the tenancy was for a term which had not run out before or at the time of the institution of the suit as the conditions of section 53A were fully satisfied in the case.
The second contention raised on behalf of the respondent is that as section 27-A of the Specific Relief Act specifically provides the remedy of specific performance in case of a part performance of contract to lease, it was obligatory upon the defendants to pursue that remedy and as no suit for specific performance of the contract embodied in Ex. D-3 was filed by the defendants, they were not entitled to invoke the protection of section 53A particularly after expiry of the period of limitation within which a suit u/s 27-A could be instituted. This contention is required to be mentioned only to be rejected.
In Amroo and others v. Babarao 1950 NLJ 30 : AIR 1951 Nag. 493 it was held that section 53A "does not say that a suit for specific performance should be within time on the date on which the defence of part performance is set up. Moreover, when a person wants to make use of a provision of law only to protect his possession and that too in defence, no question of limitation arises." The same view has been taken in Nonasaheb Gujaba Bankar v. Appa Garni Bankar and others (supra) and
It was faintly urged by the learned counsel for the respondent before that Ex. D-3 was not a genuine document. This document has been proved by the defendants by examining the previous owner of the suit land Moula Bux and Shri Shriram Nema Advocate (D. W. 2) who had drafted the said deed. There is nothing in the statements of any one of these to show that the document was subsequently manufactured by the defendants for the purposes of this case or with any other ulterior motive.
The last contention raised on behalf of the plaintiff-respondent is. that at the time of purchase of the suit land in the year J 956 from Moula Bux and Rahim Bux the plaintiff Holaram and Khemchand had no notice of the defendant''s period of lease. This argument also has no merit. The plaintiff stated in his deposition that all that he enquired into before making the purchase was to question Moula Bux and Rahim Bux. He stated that both of them had said that the defendant had no fixed term of tenancy on, the suit ''land.'' It is admitted by the plaintiff himself that at that time on the entire land purchased by them there were four tenants, one of whom was the first defendant. When it was Known to the plaintiff that the defendant was in occupation of the land it was his bounden duty to at least enquire from him as to what the terms of his tenancy were. That was not done. In these circumstances it cannot be reasonably inferred that the plaintiff had no knowledge of the defendant''s period of lease. At any rate, the knowledge of the defendant''s term of tenancy has to be imputed to him.
In the result the appeal is allowed. The decree made by the lower appellate Court decreeing the plaintiff''s claim for eviction and mesne profits is set aside. The plaintiff''s suit in so far as it pertains to eviction and mesne profits is dismissed. Considering the circumstances of the case, I leave the ''parties to bear their own costs throughout.
Leave to file L.P.A. refused.
