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PATNA HIGH COURT
Reuben and Narayan JJ.
Narayan Prasad Sukul
Versus
Raj-kishore Mishra
Appeal From Appellate Decree No. 132 of 1948 ;
Decided On : APRIL 13, 1951
LEASE - Registration - Agreement to lease - Whether requires registration - Lis pendens - Applicability to rights existing prior to suit - Specific performance - Contract for lease - Whether enforceable - Bona fide possession - Right to resist execution of decree.
Fact of the Case:
Pltfs. entered into an agreement with deft. 2 for the lease of a cinema hall, which was in a dilapidated condition. Pltfs. were to repair the hall and obtain a certificate of fitness, after which deft. 2 would execute a lease for 10 years at a monthly rent of Rs. 75. Deft. 1 obtained a decree for specific performance of an agreement to lease the same property from deft. 2, which was executed before the agreement with the pltfs. Deft. 1 sought to execute the decree against the pltfs., who filed a suit to restrain him from doing so.
Finding of the Court:
The agreement between the pltfs. and deft. 2 did not require registration as it was not a present demise but only an agreement to create a lease on a future date. The lease executed in favor of the pltfs. was not affected by the rule of lis pendens as the pltfs.' rights under the agreement existed prior to the institution of deft. 1's suit. The agreement between the pltfs. and deft. 2 was enforceable as it created a present and immediate interest in the land and bound deft. 2 to execute a lease on demand. The pltfs. were in bona fide possession of the property at the time of deft. 1's suit and were entitled to resist the execution of the decree obtained by him.
Issues: 1. Whether the agreement between the pltfs. and deft. 2 required registration. 2. Whether the lease executed in favor of the pltfs. was affected by the rule of lis pendens. 3. Whether the agreement between the pltfs. and deft. 2 was enforceable. 4. Whether the pltfs. were entitled to resist the execution of the decree obtained by deft. 1.
Ratio Decidendi: 1. An agreement to lease does not require registration unless it effects an actual demise and operates as a lease, creating a present and immediate interest in the land. 2. The rule of lis pendens applies only to rights acquired during the pendency of a suit and does not affect rights existing prior to the suit. 3. An agreement to create a lease on a future date is enforceable if it creates a present and immediate interest in the land and binds the lessor to execute a lease on demand. 4. A person in bona fide possession of property is entitled to resist the execution of a decree obtained against another person, if the decree would affect their possession.
Final Decision: The appeal was dismissed with costs.
Reuben, J.
1. This is an appeal by deft. 1 against a decision of the Additional Dist. J. of Manbhum-Singhbhum, affirming a decision of the Subordinate Judge of Purulia restraining deft. 1 from executing against the pltfs. respondents a decree obtained by him in Title Suit No. 895 of 1940 in
2. The dispute relates toa building in the town of Purulia known as Pratap Natya Mandir & the premises appertaining thereto. This building is intended for the performance of cinematograph shows & admittedly belonged to Akhoy Kumar Sen (pro forma deft. 3), by whom it was transferred to its present owner Shreemati Radharani Dassi (pro forma deft. 2). The facts as found are that the cinema hall was formerly let to the proprietors of the Shankar Talkies, who held it for some years but relinquished it on fitting to obtain from the Executive Engineer, Hazaribigh Division, a certificate of soundness necessary under the law for the holding of cinematograph shows therein. It was then taken by one Nagendra Nath Dutta, who was unable to make it fit for the purpose & surrendered it in March 1940. Pltf. 1, Raj Kiahore Misra, then entered into possession under an agreement entered into on 24 3-1940 with deft. 2, which is in the following terms :
"I, the first party settle (the said theatre house) with you, the second party, on the following terms: That from to-day you shall, at your own cost, go on doing all works of repairs to the said house & of reconstructing the roof, walls, etc. in accordance with the Govt. rules regarding Cinema Houses. After reconstructing the house you shall apply to the Govt. authority concerned for a soundness certificate; & then I shall lease out (the house) to you for 10 (ten) years on a rent of Rs. 75 per month. You shall be in possession of the said Cinema House on monthly rent as a tenant. The rent shall in no case be less than Rs. 75 per month. That within nine months from to-day you shall have to make the house fit for Cinema Show after completing all works (of construction). I shall not be competent to settle (the said house) with anybody else within the specified time. Should I do so, the same shall be null & void. On your demand for a pucca deed of lease after making the house fit for Cinema Show (House) withininine months, should I refuse to execute the deed, you shall be competent, by virtue of this agreement, to get the requisite deed executed with the help of the Court & you shall pay rent at the rate of Rs. 75 per month. You shall be competent to deduct from the rent (payable by you) the amount that you shall spend from to-day in making the Cinema House fit & shall go on paying rent when your dues shall be satisfied. Should you surrender the house on your being unable to reconstruct the same making it fit for obtaining the Soundness Certificate within nine months, you shall not be entitled to claim any amount of money from me. Should you not surrender the house on the expiry of the aforesaid time, & should you continue to make the house fit for a Cinema Show & spend money (on that account) & after completing the work should demand a pucca deed of lease from me, I shall be bound (to ?) execute a deed of lease provided that you shall not be entitled to claim or deduct from the rent (payable by you) the amount that you shall spend from to-day for making the Cinema House fit for Cinema Show on the ground of compensating my loss due to your taking a longer time than the time specified in the agreement. Should I, the first party, make any breach of agreement within the time specified in the agreement, I shall be liable for the full amount of your loss caused thereby."
He made the necessary repairs & obtained a certificate of fitness on 12-11-1941 & obtained a registered lease from Smt. Radharani Dassi in favour of himself, pltf. 2 & one Rajendra Prasad Misra, who has since transferred his interest to pltf. 3, by which lease the Pratap NATYA mANDIR was settled with these persons for a period of ten years on a mo
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