HIGH COURT OF UTTARAKHAND AT NAINITAL FIRST APPEAL NO. 72 OF 2006 Smt. Anita Chandok ......Plaintiff/Appellant. Versus Oriental Bank of Commerce and another. ..............Defendant/Respondents. Dated: 6.5.2008 Hon’ble Rajesh Tandon, J. Heard Sri K.S. Bora, counsel for the appellant and Sri S.K. Jain, counsel for the respondent. By the present First Appeal filed under Section 96 of the Code of Civil Procedure, appellant has prayed for setting aside the judgment and decree dated 22.72006 passed by the District Judge, Uttarkashi in Original Suit No. 38 of 2004 Smt. Anita Chandok Vs. Oriental Bank of Commerce and another. 3. Briefly stated, a suit was filed by the plaintiff / appellant being Original Suit No. 38 of 2004 Smt. Anita Chandok Vs. Oriental Bank of Commerce and another praying to the following effect:- ¼v½ fd izfroknh ds fo:) iz’uxr lEifRr ftldh pkSgnh okn i= ds izLrj la0 2 esa mfYyf[kr dh xbZ gS] fd okLrfod [kkyh dCts dh vkKfIr okfnuh ds i{k esa iznku djus dh d`ik dh tk;A ¼l½ ;g fd okn O;; ,oa vU; izfrdkj tks U;k;ksfpr gks] Hkh oknh ds i{k esa izfroknh ds fo:) iznku fd;k tk;A” 2 4. According to the plaint averments, the plaintiff is the owner of three storeyed building situate at Court Road, Uttarkashi, where on the ground floor, the defendant Bank is being run. Initially, the rent was fixed at Rs. 10,000/- per month on the oral consent of both the parties. The premises was constructed in the year, 1998 and the defendant occupied the premises in the month of October 1998, therefore, the provisions of U.P. Act No. 13 of 1972 are not applicable to the building in dispute. According to the plaintiff, the agreement between the parties has come to an end. 5. The defendant has contested the averments contained in the plaint by filing a written statement. In the written statement, it has not been denied that the premises was constructed in the year, 1998 and Rs. 10,000/- was agreed to be paid towards the rent. However, he has stated that now he is entitled to pay 15 percent more according to the agreement. 6. On the pleadings of the parties, the court below has recorded a finding to the following effect: “¼1½ D;k izfroknh okfnuh dk fdjk;snkj gS vkSj izfroknh ds lkFk fdjk;snkjh vuqcU/k dh vof/k lekIr gks pqdh gS tSlk fd okn i= ds izLrj la[;k & 4 esa vfHkdfFkr gS \ vFkok vuqcU/k uohuhd`r gks x;k gS tSlk fd izfrokn i= ds izLrj la[;k 14 esa vfHkdfFkr gS\ ;fn gka rks izHkko \ ¼2½ D;k Hkou ioj mRrj izns’k vf/kfu;e la[;k 13 lu~ 1972 ykxw ugha gksrk\ ;fn gka rks vlj\ ¼3½ okfnuh fdl vuqrks"k dk ikus dh vf/kdkfj.kh gS \ 7. Towards the documentary evidence, the plaintiff has filed per list 7 Notice Paper No. 8 Ga / 1 to 8 Ga/2, Registry Receipt Paper No. 9 Ga, Reply of the Notice Paper No. 10 Ga / 1 3 to 10 Ga 3. Towards the oral evidence, Smt. Anita Chadok has been examined as P.W.1. 8. Towards the documentary evidence, the defendant has filed per list 24 Ga agreement Paper No. 25 Ga / 1 to 25 Ga / 4. Towards the oral evidence, S.K. Gupta, Branch Manger has been examined as D.W.1. 9. While deciding the issue no. 1 as to whether the defendant is the tenant of the plaintiff and the period of tenancy agreement has expired as mentioned in paragraph 4 of the agreement or has been renewed as has been mentioned in paragraph 14 of the written statement, the trial Court has recorded the finding that since the parties have orally agreed to pay the enhanced rent, therefore, there was an oral consent between the parties and tenancy shall be deemed to have been extended automatically. The trial Court has recorded the finding that the parties have orally agreed to extend the tenancy period and as such, the same shall be deemed to have been extended. 10. While deciding the issue no. 2 as to whether the provisions of U.P. Act No. 13 of 1972 are applicable to the building in dispute, the court below has recorded the finding that the provisions of U.P. Act No. 13 of 1972 are not applicable to the building in dispute. 11. While deciding the issue no. 3 with regard to relief, the court below has recorded the finding that U.P. Act No. 13 of 1972 is not applicable to the building in dispute. However, since the parties have agreed to extend the period of tenancy orally, therefore, the decree for ejectment cannot be passed. 4 12. I have perused the record as well as the finding recorded by the court below, while deciding the issue no. 2 and 3 a finding has been recorded that U.P. Act No. 13 of 1972 is not applicable tot he building in dispute, therefore there is no occasion to extent the time of tenancy as the plaintiff was entitled for the relief of ejectment. Secondly, it is well established by the Apex Court that there cannot be any oral transaction and it has to be registered. 13. Counsel for the respondent has referred State of West Bengal Vs. M/s B.K. Mondal and Sons AIR 1962 SC 779, New Marine Coal Co. (Bengal) Private Ltd. Vs. The Union of India AIR 1964 SC 152 with regard to the proposition that even on the basis of the oral agreement, the plaintiff is entitled for the compensation for the breach of agreement between the parties. 14. In Budh Ram Vs. Ralia Ram 1987 Civil Court Cases Page 282; 1984 (4) SCC 75, it has been held that if the document for lease for one year and the same is registered, it is not admissible. It has been observed as under: “6. Learned counsel for the appellant placed reliance on Sajid Mia Majumdar v. Abdul Sattar Gani, BabulalSomalal V. Kantilal Govandas and Chittilapalli Mathai V. Chittilapalli Kochouseph to content that in view of the Transfer of Property Act and Section 17 of the Registration Act, a lease for year to year requires registration and in absence of registration, the document could not be admitted in evidence, and as the document is inadmissible in evidence, it could not be used as piece of evidence in proof of the terms of the lease.” 5 15. Since the requirement of registration was lacking, therefore, no presumption can be drawn on the basis of oral agreement with regard to the deemed extension as held by the court below. 16. In view of the aforesaid, the Appeal deserves to be allowed. The case is sent back to the court below for deciding afresh in view of the observations made above. 17. Consequently, First Appeal is allowed. No order as to costs. (Rajesh Tandon, J.) 6.5.2008 Rathour