IMPORTANT POINT
A landlord cannot evict a tenant without issuing a notice under Section 106 of the Transfer of Property Act, even if the landlord claims ownership through a sale deed.

JUDGMENT/ORDER

1. Heard the learned counsel for the appellants and the learned counsel for the respondents.

2. The appellants were defendants. The respondent had filed a suit for possession based upon the title. Simultaneously, the plaintiff had come with a case that defendants Nos.1 to 3 had unauthorizedly sublet the suit premises to defendants Nos.4 and they were recovering the rent for which the plaintiff was entitled. The pleadings of the plaintiff reveal that he was treating the respondent as a tenant. Defendant had come with a case that sale transaction was nominal and never intended to be acted upon. Therefore, there was no landlord tenant relationship. They were in possession as a owner.

3. The defence of the defendant Nos. 1 to 3 was that it was a nominal document which was discarded by the First Appellate Court and it reversed the findings of the trial Court.

4. Heard the learned respective counsels. At the time of admission of the appeal a substantial question of law was framed, which reads thus :-

"There involves substantial question of law in regard to admissibility of the document".

5. The learned counsel for the appellants would submit that the 'document' means the sale deed in question. The learned counsel for the plaintiff has also argued at length.

6. From the arguments it has been emerged that the plaintiff treated defendants as tenant and subtenant. Therefore, the tenancy was to be terminated as provided under Sec. 106 of the Transfer of Property Act. Hence, the following additional substantial question of law is formulated;.

(1) Whether the eviction decree can be passed against the tenant without determination of the tenancy by way of notice under Sec. 106 of the Transfer of Property Act.

7. The learned counsel for the appellants states that the document of sale was a registered document. Such document is admissible but the intention of the appellants/defendants was that though it was a document of sale, it was a nominal sale deed against the loan.

8. Admittedly, registered sale deed of the suit property was executed in favour of the plaintiff. The recitals of the sale deed reveals that the possession of the suit property was handed over to the plaintiff. The legal document of transfer was created. So, considering the definition of 'mortgage' the nature of the document may be said that it was a mortgage by a conditional sale. Therefore, the substantial question of law formulated by the order of this Court dtd. 6/2/1995, is modified as follows :-

Whether the sale transaction was a mortgage by a conditional sale ?.

9. The learned counsel for the appellants has vehemently argued that the possession of the suit property, though recited in sale deed, was never parted with the plaintiff. Therefore, it was not out and out a sale transaction. The case of the plaintiff was not clear about getting the possession of the suit property after the sale transaction. Though the defence has been raised that the said document was nominal against loan, there was no specific pleading how much loan amount was raised and for what purpose the loan was raised. The learned counsel for the appellants submits that the oral evidence was led on the amount borrowed.

10. The evidence without pleadings in a civil suit is no evidence. Hence, whatever defendant No.1 deposed about the amount borrowed, that cannot be considered to prove his defence.

11. In the absence of any pleadings, he has also deposed that it was agreed between him and Pathan/the plaintiff that after returning the money he should execute the reconveyance deed.

12. The sale deed is silent about the reconvenyance. Proviso to Sec. 58 (c) of the Transfer of Property Act, 1882 provides that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale. The proviso is very clear that in a mortgage of conditional sale, the condition of reconveyance shall be embodied in the document itself. If it is