S.C.PARIJA, J. R.F.A. NO.210 OF 2007 (Decided on 03.03.2011) CHAMPAKALATA MOHANTY ………. Appellant. .Vrs. ATMARANJAN MOHAPATRA & ORS. ………Respondents. T. P. ACT, 1882 (ACT NO.4 OF 1882) – Ss. 106,111(a). For Appellant - M/s. P.K.Routray, B.K.Mishra, R.K.Rout, A.Routray. For Respondents- M/s. R.K.Mohanty, D.K.Mohanty, A.P.Bose, S.N.Biswal & S.Mohanty (for Respondent no.1). M/s. K.K.Dash & J.Pradhan (for Respondent no.3). S.C. PARIJA J. This appeal is directed against the judgment and decree dated 10.5.2007 and 29.6.2007 respectively passed by the Adhoc Addl. District Judge, Fast Track Court No.1, Cuttack, in T.S. No.271 of 2001, decreeing the plaintiff’s suit and directing the defendants to give vacant possession of the suit scheduled premises to the plaintiff within two months. 2. The original appellant, Smt. Champaklata Mohanty, who was defendant no.2 in the suit, having died during pendency of this appeal, she has been substituted by the present appellants and proforma respondent no.4, as her legal representatives. 3. The plaintiff-respondent no.1 filed T.S. No.271 of 2001 seeking eviction of the defendants from the tenanted premises mentioned in Schedule ‘B’ and ‘C’, situated over Schedule ‘A’ land, as detailed in the plaint. The case of the plaintiff was that he had agreed to let out the first floor of the building, as per Schedule ‘B’ to the defendants vide lease agreement dated 8.12.1991, with a stipulation that the said lease would be for a period of three years, commencing from 1.2.1992 to 31.1.1995, with a monthly rent of Rs.4,500/-. Subsequently, on the request of the defendants a supplementary agreement was executed between the parties on 18.4.1992, extending the period of tenancy from three years to seven years, commencing from the date of their original occupation and it was stipulated therein, that the monthly rent of Rs.4,500/- would be payable for three years from the date of commencement of the tenancy, i.e.1.2.1992, and thereafter the monthly rent would be Rs.5,800/- per month for the balance period of four years. 4. In August, 1993, the defendants approached the plaintiff for taking the second floor of the building as per Schedule ‘C’ on rent and accordingly the plaintiff entered into a lease agreement with defendants 2 and 3 dated 19.9.1993, for letting out the second floor of the building for five years with effect from 1.1.1994, terminating on 31.12.1998, on a monthly rent of Rs.4,500/- till 31.12.1996 and Rs.5,800/- for the balance period till 31.12.1998. 5. On 29.4.1995 a meeting was convened between the plaintiff and the defendants and as per the minutes of the said meeting, it was agreed between the parties that the defendants will continue in the tenanted premises up-to 30.4.1999, on the same terms and conditions entered into earlier regarding first floor and second floor premises. 6. The case of the plaintiff was that the lease of the tenanted premises expired on 30.4.1999 and despite notice, three months prior to the expiry of the terms of the lease, expressing his intention not to extend the lease any further, the defendants did not vacate the tenanted premises, even after expiry of the period of lease and continued to occupy the same. The plaintiff finally served a notice dated 28.7.2000 under Section 106 of the Transfer of Property Act (for short the ‘T.P. Act’), but the defendants did not vacate the tenanted premises, thereby compelling the plaintiff to file the suit for eviction of the defendants from the said tenanted premises, as detailed in Schedule ‘B’ and ‘C’ of the plaint. 7. Defendant no.1 having been served with notice did not choose to appear and was set ex parte. Defendant no.2 appeared and filed written statement, denying the plaint allegations, though admitting the execution of the lease agreements with regard to the tenancy. She challenged its various stipulations and claimed her possession over the tenanted premises to be authorized by virtue of the terms and conditions of the lease agreements. Defendant No.2 further pleaded that no notice, as required under Section 106 of the T.P. Act has been served on her and therefore the suit for eviction is not maintainable. She justified her possession over the tenanted premises and claimed the same to be authorized and lawful. 8. Defendant No.3 appeared and filed her written statement denying the plaint allegations and taking similar stand as that of defendant no.2. 9. On the pleadings of the parties, the Trial Court framed the following issues : “I S S U E S (i) Whether the suit is maintainable ? (ii) Whether the agreements dt.8.12.91, 18.4.92, 19.9.93 and 22.10.93 are enforceable in the eye of law ? (iii) Whether a notice U/S.106 of T.P. Act was required to be served by the plaintiff on the defendants ? (iv) Whether the notice dt.28.7.2000 is a notice U/S.106 of Transfer of Property Act ? (v) Whether the defendants are liable for eviction from Schedule ‘B’ and ‘C’ premises. (vi) Whether the plaintiff is entitled to any relief ?” 2 10. The plaintiff examined himself as P.W.1 and adduced evidence to substantiate his pleadings made in the plaint and relied on several documents filed by him, which were taken into evidence and marked as Exts. 1 to 16. 11. Defendant no.2 examined one witness (D.W.1) in support of her case and relied on certain documents which were marked as Exts. D-2/A to D-2/C/1. 12. Defendant no.3 filed her evidence through affidavit, as provided under Order 18 Rule 4 C.P.C. but did not come forward to face the cross examination. The Trial Court accordingly proceeded to expunge her evidence. 13. The Trial Court, considering the evidence on record, both oral and documentary, came to hold that the suit for eviction was maintainable and decreed the same against defendants 2 and 3 and ex parte against defendant no.1 and directed the defendants to give vacant possession of the tenanted premises detailed in Schedule ‘B’ and ‘C’ to the plaint within two months. 14. The two main contentions raised by the learned counsel for the appellants are : (a) The lease agreements (Exts.1 to 4) executed between the parties, in respect of the tenanted premises being not registered, as required under Section 17 of the Indian Registration Act, the same could not have been taken in evidence and considered for adjudicating the dispute between the parties. (b) As no notice has been served on the defendants, as required under Section 106 of the T.P. Act, the suit for eviction filed by the plaintiff is not maintainable. 15. On a perusal of the impugned judgment, it is seen that the Trial Court has taken into consideration the plea of the defendants with regard to non-registration of the lease agreements relied upon by the plaintiff (Exts.1 to 4) and on an analysis of Sections 17 and 49 of the Indian Registration Act, the Trial Court has come to find that the said unregistered lease agreements can be taken in evidence for collateral purpose to ascertain the nature and character of possession. The relevant findings of the Trial Court in this regard is extracted below : “xx xx xx From perusal of the Exts. 1 to 4 it appears that none of them are registered documents. The Exhibits further reveals that the lease of Sch. ‘B’ premises was initially for a period of 3 years which was subsequently enhanced for a further period of four years commencing from 8.12.91 till 30.4.99. The tenancy created for the Sch. ‘C’ premises subsequently vide Ext.4 was to expire on 30.4.99. From the above it is clear that Exts. 1 to 4 creates tenancy for more than one year to year or for any term exceeding one year or reserving a yearly rent requires compulsory registration. Sec. 49 of the Registration Act stipulates the effect of non- registration of documents required to be registered and enunciated that no document required by Section 17 to be registered shall : (a) Affect any immovable property comprised therein : (b) Confer any power to adopt. 3 (c) Be reserved as evidence of any transaction affecting such property or conferring such power. The aforesaid provision U/S.49 of the Registration Act, however, empowers that the unregistered documents can be taken in the evidence for collateral purpose to ascertain the nature and character of possession. xx xx xx” 16. Coming to the question regarding service of statutory notice under Section 106 of the T.P. Act, the Trial Court on the basis of the materials on record has come to find that as the defendants occupied the tenanted premises under a unregistered lease agreements (Exts.1 to 4), which were compulsorily registrable under Section 17 of the Indian Registration Act, the defendants do not become tenant from month to month and therefore the notice terminating their tenancy under Section 106 of the T.P. Act was not necessary. Even otherwise, the Trial Court found from the evidence on record that the plaintiff had served a notice under Section 106 T.P. Act dated 28.7.2000 (Ext.11) by registered post with A.D. which had been duly served on the defendants as per postal receipts showing despatch through registered post (Ext.11/ a) and postal acknowledgement receipts (Ext. 11/b). 17. It is a well-established proposition of law that a deed which is compulsorily registrable under Section 17 of the Indian Registration Act, cannot be looked into, if it is not so registered, to create, declare, assign, limit or extinguish any right in immovable property. That is what Section 49 of Indian Registration Act lays down. It is equally well-established that such a document could be looked into as evidence for collateral purpose. Such a document, though inadmissible in evidence, for the purpose of proving the terms and conditions of the document, the same can be admitted in evidence, for collateral purpose of proving the nature and character of possession of the parties. The document can be relied upon to establish the jural relationship between the parties and can also be relied on to prove the admission of the defendant, in which capacity he is occupying the tenanted premises and the nature of such possession. 18. Coming to the question regarding service of statutory notice under Section 106 of the T.P. Act on the defendants, as the lease in respect of the tenanted premises admittedly expired on 30.4.1999, no notice was necessary to determine such a lease. It is trite law that where a definite period is fixed as the term of a lease, in such a case, the lease will automatically come to an end by efflux of time limited thereby, as provided under Section 111 (a) of the T.P. Act and a notice will not be necessary to determine such a lease. After the expiration of the term fixed by the lease, the lessee continuing in possession, in the absence of an assent by the lessor, will only to be a tenant by sufferance and can be sued for ejectment at any time without any previous notice or demand of possession. Being a trespasser and not a tenant holding over, no notice is necessary. 19. Applying the principles of law as discussed above to the facts of the present case and considering the findings of the Trial Court as given in the impugned judgment and the reasons assigned in support of the same, no impropriety or illegality can be 4 said to have been committed by the Trial Court so as to warrant any interference in this appeal. 20. Learned counsel for the appellants has filed a memo stating therein that as the appellants are running a Nurshing Home in the tenanted premises, they may be given some time to vacate the said premises, as they have to arrange a suitable accommodation for shifting the Nurshing Home from the suit premises. 21. Considering such prayer, the appellants are granted time till end of April, 2011, to vacate the tenanted premises, failing which the execution proceeding shall continue. R.F.A. is accordingly dismissed with the above modification. Appeal dismissed. 5