An unregistered lease agreement for a term of five years is void under Section 49 of the Registration Act, and the plaintiff cannot rely on such an agreement to establish the creation of tenancy.

( 1 ) THE present appeal is directed against the judgment and decree dated 29. 4. 1997 passed by Sri S. Mondal, learned Assistant District Judge, Second Court, Hooghly in connection with Title Appeal No. 161 of 1993 affirming the judgment and decree dated 31. 05. 1993 passed by Sri T. Uddin, learned Munsif, 1st Court, Hooghly in connection with Title Suit No. 209 of 1990.

( 2 ) THE suit before the learned lower Court was for declaration and permanent injunction filed by the plaintiff/tenant against the defendant/landlady. The fact of the case in brief is that the plaintiff was inducted in the suit premises as a tenant for a term of five years under an agreement of tenancy dated 26. 02. 1990 and the monthly rent was fixed at Rs. 250/ -. The said tenancy was taken for the purpose of starting a grill business from the suit premises. For that purpose the plaintiff took up the re-orientation of the suit premises and in course of that the plaintiff used to keep the key of the suit premises with the landlady as the suit room is a part of the dwelling house of the defendant being connected by a door as well as a shutter. On the basis of such tenancy the plaintiff took all the preliminary steps for starting the grill business including trade licence, electric connection, bank loan etc. The defendant/landlady had also issued rent receipt in favour of the plaintiff. Subsequently, the defendant did not hand over the suit premises to the plaintiff and as such the suit was filed. The defendant contested the suit and denied all the material allegations. It was, inter alia, stated that there is a very close relation between the parties and taking advantage of such relation the plaintiff got some of the documents signed by the defendant in the absence of her husband and son. It is further stated that in fact the son of the defendant who was an unemployed automobile engineer intended to start a business from the suit premises. Both the learned lower Courts rejected the plea of the defendant and decreed the suit.

( 3 ) IN such circumstances, it appears from the record that the substantial question of law was formulated at the time of admission of appeal and the same is as below: whether the plaintiff/respondent having failed to prove the creation of tenancy in terms of his pleadings, and thus there has been variance between the pleading and proof, the learned Courts below erred in law in decreeing the suit.

( 4 ) MR. Bhaskar Ghosh, learned counsel appearing with Mr. Amalendu Sen, learned counsel for the appellant/defendant/landlady submits before me that the plaintiff could not furnish even a single receipt before the learned trial Court and only one receipt dated 15. 1. 1990 for Rs. 30/- was produced by the plaintiff in order to obtain the licence. Mr. Ghosh has drawn my attention to the agreement dated 26. 02. 1990 (exhibit A ). According to the plaint case the rent was Rs. 250/- per month although the rent receipt to that extent was only for Rs. 30/- and that too in connection with holding No. 153 although the suit premises is holding No. 28/22. Mr. Ghosh then argues before me that the agreement dated 26. 2. 1990 was for five years and so it can be taken that it was a lease agreement but as it was not registered in terms of provisions of section 49 of the Registration Act, the said instrument is a void one. Mr. Ghosh has also drawn my attention to the provisions of section 107 of the Transfer of Property Act in this connection and tries to impress upon me as regards the necessity for registration. Mr. Ghosh has then argued before me that the plaintiff could not prove the payment and acceptance of rent and so the suit was liable to be dismissed.

( 5 ) MR. Ghosh has then referred to the ratio decided in the case of M/s. Parekh Brothers v. Kartick Chandra Saha and Ors. (AIR 1968 Cal 532) in which it was, inter alia, held that the affidavit filed with an application under section 17 of the West Bengal Premises Tenancy Act but n