IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 12TH OCTOBER 2009 / 20TH ASWINA 1931 RSA.No. 995 of 2009() --------------------- AS.23/2005 of ADDL.SUB COURT,PARAVUR OS.22/2001 of MUNSIFF COURT, PARAVUR .................... APPELLANT: (APPELLANT-DEFENDANT) ------------------------------------------ P.K. BHASKARAN, S/O. KRISHNAM, POTTASSERIL THEKKUMPURAM BHAGOM, CHENDAMANGALAM VILLAGE, PARUR TAUK. BY ADV. SRI.T.K.VENUGOPALAN SRI SHIBU JOSEPH RESPONDENT: (RESPONDENTS-PLAINTIFFS 2 TO 5): ------------------------------------------- 1. JAMEELA, D/O. SUBRAMANIAN, THACHAPPILLIL MANNAKKODAM MURI,CHENDAMANGALAM VILLAGE. 2. JAIN, S/O. SUBRAMANIAN, THACHAPPILLIL MANNAKKODAM MURI,CHENDAMANGALAM VILLAGE. 3. JAYARAM, S/O. SUBRAMANIAN, THACHAPPILLIL MANNAKKODAM MURI,CHENDAMANGALAM VILLAGE 4. JAGADEESH, S/O. SUBRAMANIAN, THACHAPPILLIL, MANAKKODAM MURI, CHENDAMANGALAM VILLAGE. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12/10/2009, ALONG WITH CAVEA NO. 495 OF 2009 THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P JOSEPH, J ---------------------------------------- R.S.A.No.995 of 2009 --------------------------------------- Dated this 12th day of October 2009 JUDGMENT Respondents appears through counsel. 2. Substantial question of law urged for a decision in the memorandum of second appeal is whether based on Ext.A1, an unregistered lease deed for a period exceeding one year a decree for eviction could be granted in favour of the respondents? 3. Respondents filed O.S.No.22 of 2001 in the trial court seeking a decree for eviction of appellant on the allegation that he is a lessee of the shop room on the strength of a lease deed dated 01-03- 1986 executed in favour of predecessor of respondents agreeing to pay rent at the rate of Rs.40/- per month. On the death of predecessor in interest, respondents acquired right, title and interest over the shop room. Appellant attorned to them and paid the rent. Respondents claimed that the rent is in arrears from January 2000 and further that for their bonafide need the shop room is required. Notice was issued to the appellant on 25-10-2000 terminating the tenancy with effect from January 30-11-2000. Respondents prayed for recovery of possession of the shop room with arrears of rent from January 2000 with interest at the rate of 12% per annum and future damages for use and occupation of the shop room at the rate of Rs.200/- per month. Appellant admitted the tenancy but claimed it was not from 01-03- R.S.A.No.995 of 2009 2 1986 but form 01-03-1980. He also admitted that rent payable by him is Rs.40/- per month but denied that rent is in arrears. On 18-07-1999 a portion of the shop room and adjacent room collapsed and with the consent of respondents, himself and the tenant of the adjacent shop room, Salim (DW2) effected repairs spending Rs.10,420/-, himself contributing Rs.3000/-. Respondents agreed to adjust the said amount in the future rent payable and hence he did not pay rent from January 2000. Further claim is that until the sum of Rs.3,000/- spent by the appellant is discharged by adjusting towards rent, he is entitled to remain in possession of the shop room. Learned Munsiff found against the claim of appellant regarding spending Rs.3,000/- for repairs and adjustment of rent arrears in the said amount and granted a decree for eviction with rent arrears, interest and future damages at the rate of Rs.40/- per month. First appellate court has concurred with that finding and confirmed the judgment and decree. Hence this second appeal urging the substantial question of law first above mentioned. Learned counsel for appellant placed reliance on the decision of Supreme Court in K B Saha and Sons Private Limited Vs. Development Consultant Lilmited (2008(8) SCC 564) and contend that Ext.A1, rent deed being for a period exceeding one year is required under section 49 of the Registration Act to be registered, Ext.A1 being unregistered cannot be used for any purpose, R.S.A.No.995 of 2009 3 respondents have sought eviction on the strength of Ext.A1 and hence they should fail. It is also the contention of learned counsel that though respondents have pleaded that tenancy started from 01-03- 1986, evidence on record would show that tenancy started as per Ext.A1 dated 01-03-1980. Learned counsel for respondents contend that no substantial question of law is involved since even de hors Ext.A1, on the admission made by appellant regarding tenancy and the rate of rent and in the absence of any contention regarding validity of quit notice, respondents are entitled to get decree as prayed for and granted. 4. Ext.A1, it is not disputed is the rent deed executed by appellant in favour of predecessor in interest of respondents. It is true that in the plaint in para 1 it is stated that as per rent deed executed by appellant in favour of predecessor in interest, the rental arrangement started on 01-03-1986. In the plaint, in the list of documents produced Sl.No.1 is rent deed dated “01-03-1986” but it is not disputed by appellant also that what was produced along with the plaint is Ext.A1 dated 01-03-1980. Therefore, it is clear that the averments in the plaint as to the date of commencement of tenancy as on 01-03-1986 is a mistake and, what is really meant is that the tenancy started as per Ext.A1 dated 01-03-1980. 5. Then the question is whether for non registration of Ext.A1, R.S.A.No.995 of 2009 4 the suit for eviction and recovery of rent arrears must fail. There is no dispute and section 49 of the Registration Act requires that Ext.A1 being for a period exceeding one year is compulsory registerable and if not, it cannot be looked into except for collateral purposes. In the decision relied on by learned counsel for appellant, one of the parties to the litigation wanted to rely on a particular clause in the rent deed which, though compulsorily was registerable, was not registered. The Supreme Court held that the user attempted by the party concerned is not a collateral purpose and hence, the attempt should not be permitted. That situation does not arise in this case. According to the learned counsel for respondents even de hors Ext.A1 they are entitled to succeed. On going through the judgments under challenge and, it is not disputed also that appellant admitted that he is a tenant under predecessor in interest of the respondents and even after the death of predecessor, he continued to be a tenant under the respondents attorning to them. He does not dispute that rent payable is Rs.40/- per month and that he is paid the rent accordingly, every month till December 1999. He does not also dispute that he did not pay rent payable from January 2000 though according to him it was because respondents had agreed to adjust the rent payable from that month onwards in the sum of Rs.3,000/- which he claimed to have spent for alleged repair of the shop room. So far as that contention is R.S.A.No.995 of 2009 5 concerned, courts below have found against on evidence, no substantial question of law is involved in that regard and hence, this court cannot interfere in second appeal with that finding. In short, even de hors can Ext.A1 it is admitted by appellant that he is a tenant and non payment of rent from January 2000 are all admitted. Since the payment of rent is from month to month and, it is admitted that the entrustment was for doing business in the shop room, it can be taken that the tenancy is from month to month, in the absence of any plea or evidence of any contra agreement. In such a situation, tenancy could be terminated by fifteen days notice ending with the month of tenancy. In this case even according to the appellant, tenancy started on the first day of the english calendar month and hence it could be validly terminated by fifteen days notice ending with the end of the calendar month. Evidence in this case show that tenancy is terminated with effect from 30-11-2000. The Supreme Court in Kunhahammed Vs. Unnimoideenkutty, Biswabani Pvt. Ltd Vs. Santhosh Kumar (2009(1) KLT 852, AIR 1980 SC 226) in similar situation where the rent deed exceeding for a period of one year was not registered, held: “.............Even if it is assumed that the tenant was put in possession for the first time under a lease which turned out to be void, as he came into possession of the premises with the consent of the landlords and paid rent from month to month an interference of tenancy could be drawn and the duration of the tenancy in such circumstances had to be deemed to be R.S.A.No.995 of 2009 6 from month to month.............” That decision was followed by a division bench of this court in Mohammed Kunju Isha Beevi Vs. Elayakunju Shahul Hameed (1993(2) KLT 631) where it was held, “............Even though Ext.A1 is a void lease the defendant who is in possession under that void lease paid rent and the landlords accepted the rent upto 12-09-1985. On the reasoning in the said case we hold that the defendant became a tenant by holding over under S.116 of the Transfer of Property Act even though the provisions of S.107 of the T.P.Act have not been complied with and that it can be deemed to be a monthly lease terminable by 15 days notice...” The Supreme Court in Anthony Vs. Ittoop (2000 (3) KLT 123 (SC)) held that the mere fact that an unregistered instrument come into existence would not stand in the way of the court determining whether there was in fact a lease otherwise than through such deed. In the light of above binding authorities and based on the admission and evidence on record regarding monthly tenancy, courts below are justified in granting a decree for eviction. That Ext.A1 is an unregistered lease does not in any way affect the judgment and decree under challenge. As such no substantial question of law as raised in the memorandum of second appeal do arise. 6. At this stage, learned counsel for appellant requested that appellant may be granted six months' time to vacate the shop room. R.S.A.No.995 of 2009 7 Learned counsel submits that appellants is conducting a ration shop and it will take atleast six months time for him to find an alternative accommodation and shift the business. Immediate shifting of the business would affect the ration card holders also, it is submitted. Learned counsel for respondents resisted the request, considering the facts and circumstances of the case I am inclined to allow the request made by learned counsel for appellant but appellant has to file an affidavit in the trial court undertaking to vacate the premises on the expiry of six months from this day without putting up any claim or objection. Resultantly this second appeal is dismissed in limine. Appellant is granted six months' time from today to vacate the shop room on condition that he will, within one month from this day file an affidavit in the trial court undertaking to vacate the shop room on the day following the expiry of the said period of six months from this day without putting forth any claim or objection. THOMAS P JOSEPH, JUDGE Sbna/