IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.518 of 2009 DHANANJAY KUMAR, SON OF SRI HAZARI PRASAD SINGH @ HARI PRASAD SINGH, RESIDENT OF MOHALLA-KUMHRAR TOLI (MANPUR), P.S. MUFASSIL AND DISTRICT-GAYA. ……………………………………….......DEFENDANT-PETITIONER. Versus RAM JAY PRASAD SINGH, SON OF LATE RAM ANUGRAH NARAYAN SINGH, RESIDENT OF ANAND BHAWAN, SWARAJPURI ROAD, P.S. CIVIL LINES AND DISTRICT-GAYA. ………..………………………............PLAINTIFF-OPPOSITE PARTY. ----------- For the Petitioner : Mr. J.S. Arora, Advocate. For the Opposite Party : M/s. Binod Kumar Singh & Arvind Kumar Singh, Advocates. --------------- 6. 27 .7.2010. This Civil Revision is directed against the order/judgment and decree dated 7.2.2009 passed by the Execution Munsif, Gaya, in Eviction Suit No.19 of 2006/3 of 2004, whereby the defendant-petitioner had been directed to vacate the suit premises within sixty days and to hand over the vacant possession to the plaintiff. This Civil Revision is being disposed of at this stage upon the joint request made on behalf of the parties. I have heard the parties and perused the records of this case. The plaintiff-opposite party brought the aforesaid 2 suit on the ground of expiry of period of tenancy, however, it has also been asserted in the plaint that the plaintiff is in bonafide personal requirement of the suit premises. The defendant contested the suit by filing written statement and leading evidence. The trial court after appreciation of materials on record had passed the impugned order/judgment and decree directing the defendant-petitioner to vacate the premises. Learned counsel appearing on behalf of the defendant-petitioner submitted that though an issue was framed regarding the plaintiff’s reasonable and bonafide requirement of the suit premises for his personal use but no issue was framed in regard to the fact as to whether the plaintiff’s requirement could be fulfilled by partial eviction of the tenant as per the mandatory requirement of proviso to Section 11(1)(c) of the Bihar Buildings (Lease, Rent and Eviction) Control Act,1982 (hereinafter referred to as “the Act”). Secondly, it had been submitted that even though it is assumed that the suit had been decreed on the basis of the expiry of the period of lease, no such issue was framed by the court concerned and, as such, the order/judgment impugned becomes erroneous and liable to be set aside on this ground alone. Learned counsel further submitted that it is admitted fact that the agreement was a 3 written one and, thus, in view of the provisions as contained under Sections 106 and 107 of the Transfer of Property Act, 1882 read with Section 17(d) of the Indian Registration Act, 1908, the same was compulsorily required to be registered and on account of its non registration the document concerned was not admissible in evidence and, as such, the same could not be considered as a tenancy for fixed period rather the trial court should have considered it a month to month tenancy. Thus, the impugned order/judgment having been passed in favour of the plaintiff on the ground of expiry of fixed period of lease, was illegal and is liable to be set aside. In support of his submission, learned counsel for the petitioner had placed reliance upon a decision of this Court rendered in Sunil Kumar Keshri Vs. Smt. Sadhana Ganguli {1996(2) BLJR 1313)}. It is submitted that in the aforesaid decision a Single Bench of this Court, placing reliance upon a decision of the Division Bench of this Court in Maheshdeo Prasad Singh and another Vs. Shree Thakurjee Shree Radhakrishna and others {1967(XV) BLJR 521)}, had held that an un-registered Kirayanama was inadmissible in evidence to establish a tenancy for a term and such tenancy would be deemed to be a month to month tenancy. 4 On the other hand, learned counsel appearing for the plaintiff-opposite party submitted that it has specifically been mentioned in the plaint that the suit is being filed under Section 11(1)(c) of the Act on the ground of expiry of lease period, however, in subsequent paragraph, statement regarding bonafide personal requirement has also been made. It had further been contended that the defendant-petitioner had not only admitted the factum of fixed tenancy in lieu of a written agreement between the parties in his written statement as well as oral evidence but he had also relied upon the concerned deed of agreement and had himself filed the same and proved had brought on record as Ext.C. Thus, the concerned document was actually filed and relied upon by both, the plaintiff as well as the defendant, as Ext.7 and Ext.C respectively. In that view of matter the contention was that even though the error has been committed by the court concerned in not framing any specific issue with regard to expiry of the period of fixed tenancy, the aforesaid issue was well within the knowledge of the parties as both the parties knew that their respective cases revolved around the aforesaid deed of lease executed for a period of 11 months. The aforesaid fact is reflected from their respective pleadings as well as evidence led on their behalf. The trial 5 court has also considered the aforesaid controversy and upon appraisal of the materials on record including the documentary as well as oral evidence led in this regard and had come to the conclusion that it is admitted case that there was a fixed tenancy of 11 months between the parties, which had expired on 31st of May, 2003. Therefore, the submission was that even if the same was not framed as a separate issue but still having been decided on the basis of the materials on record and the evidence led by the parties and as both of the parties were having full knowledge of the issue in question, the impugned order/judgment cannot be said to be erroneous on account of not framing such specific issue. Learned counsel had placed reliance in this regard on a decision rendered by the Apex Court in Sree Swayam Prakash Ashramam and another Vs. G. Anandavally Amma and others {(2010)2 Supreme Court Cases 689)}. Learned counsel further contended that Section 107 of the Transfer of Property Act, 1882, stipulates in clear terms that a lease of immovable property from year to year, or for any term exceeding one year, for receiving a yearly rent, can be made only by a registered instrument. Similarly, Section 17(d) of the Indian Registration Act, 1908, also provides that leases of immovable property from year to year, 6 or for any term exceeding one year, or reserving a yearly rent, is compulsorily required to be registered, failing which, in view of the provision under Section 49 of the Indian Registration Act, the same would not be admissible as evidence of any transaction affecting such property. However, the lease of deed in question, i.e., Ext.7 and Ext.C was only for 11 months and , thus, it was not required to be registered at all rather its registration would be optional as per the provisions as contained in Section 18(c) of the Indian Registration Act, 1908. Learned counsel submitted that though a Division Bench of this Court in Maheshdeo Prasad Singh and another Vs. Shree Thakurjee Shree Radha Krishna and others, reported in 1967(XV) BLJR 521 had held that unregistered Kirayanama is inadmissible in evidence to establish tenancy for a term but while noticing such, it does not appear from the reading of the aforesaid decision that it had also considered unregistered Kirayanama of a period of less than one year. Moreover, in the present case, when such tenancy and contract is admitted by both the parties in their respective pleadings and both of them placing reliance upon the document concerned have brought the document on record as Ext.7 and Ext.C, the aforesaid controversy is not required to be gone into as it is well settled 7 that admitted fact does not require to be proved in view of the provisions as contained in Orders VIII, X and XII of the Code of Civil Procedure. Lastly, it is contended that since no specific finding had been recorded with regard to the bonafide necessity of the plaintiff, there was no need for deciding the question of partial eviction as the suit had been ultimately been decreed only on the basis of expiry of the lease period. I find force in the submissions raised on behalf of the plaintiff-opposite party. Though, an issue with regard to the bonafide requirement of the plaintiff was framed but upon the reading of the impugned order/judgment, it appears that the court concerned has considered the case under Section 11(1)(c) of the Act on the basis of the expiry of the fixed term of tenancy. From the reading of the plaint and the written statement as well as upon appreciation of evidence led on behalf of the parties, it is also clear that the aforesaid issue was well within the knowledge of the parties and their case had revolved around of the aforesaid issue itself. Thus, even though no such specific issue was framed by the court concerned, there was sufficient consideration of the same on the basis of the pleadings of the parties as well as evidence led on their behalf. It is also reflected from the materials on record 8 that the parties had well understood their respective cases with regard to the aforesaid issue of the expiry of the lease period. It is well reflected from paragraphs-2, 3 and 7 of the plaint that such issue of expiry of period of lease on 31st of May, 2003 has been raised and it was a definite case of the plaintiff that the suit had been filed under Section 11(1)(e) of the Act. The defendant in his written statement in reply to the paragraph-2 has stated that the same is a matter of documentary evidence and the defendant is not going to admit anything which is beyond the document and thereafter it has been specifically mentioned by him in paragraph-15 of his pleading that the averments made in paragraph 3 of the plaint is correct. In paragraph-3, the plaintiff has stated that the lease was for a period of 11 months, beginning Ist July, 2002 and ending on 31st of May, 2003. Not only that, the defendant himself has placed reliance upon the aforesaid deed of lease and has brought the aforesaid document on record as Ext.C. The defendant who has been examined as D.W.8 has accepted in his affidavit that the deed of lease was executed between him and the plaintiff in the year 1997 which was time to time renewed and the rent was lastly increased as Rs.800/- per month in the year 2002. In his cross examination, he has clearly admitted 9 that the lease agreement was executed between him and the plaintiff, which was for 11 months period and the same had expired in May, 2003 and also that thereafter he has not made any written request for renewal of the lease period. In view of the aforesaid specific admission regarding the execution of deed as well as the factum of period of tenancy and reliance upon the deed of lease by both the parties, the defendant would be estopped from challenging the same at this stage. Thus, in view of the fact that period of tenancy as well as the concerned document was not challenged by the defendant rather the same had been accepted and admitted by him, in my opinion, the court concerned had not made any error in passing the impugned order / judgment. As a result, this Civil Revision, being devoid of any merit, is dismissed. The interim stay of further proceeding of Execution Case No. 6 of 2009 granted vide earlier order dated 8.2.2010 is hereby vacated. P.S. (Dr. Ravi Ranjan, J)