The burden of proof for establishing a lease for manufacturing purpose lies on the party claiming such purpose. An unregistered lease agreement cannot be used to establish the rights and liabilities of the lessors and lessees.

JUDGMENT

Soumen Sen, J. - The appeal is arising out of a judgment and decree dated 16th July, 2012 in connection with the Title Suit No.115 of 2008. The suit was filed by the plaintiff for eviction and was decreed in favour of the plaintiff. The said judgment and decree is challenged, inter alia, on the ground that the lease was for manufacturing purpose and this is terminable only by 6 month's notice expiring with the end of the year of the tenancy.

2. However, in the instant case the lease was terminated by 15 day's notice expiring with the end of the month of the tenancy.

No other point was urged in support of the appeal.

3. There is no dispute that the defendant was put into possession by an agreement dated 27th March, 2003 for a period of 5 years for manufacturing purpose.

4. The plaintiff alleged that on 31st October, 2007 the said tenancy expired and the parties did not agree for renewal thereof. The tenancy agreement shows that it is an unregistered instrument. The question that arises for consideration is whether the terms of the said unregistered tenancy agreement can be taken into consideration while deciding the invalidity of the notice and also for the purpose for which the tenancy was created. The clear answer to this issue is known.

5. The learned Trial Judge on consideration of the provisions of Section 106 and 107 of the Transfer of Property Act arrived at the same finding.

6. The learned Trial Judge has also taken into consideration the fact that although DW1 during his cross-examination has stated that the said premises was taken for manufacturing purposes, no evidence was adduced to show that any kind of manufacturing activity was ever carried from the suit premises. However, as rightly pointed out by the learned Trial Judge the said evidence is not of much relevance as the terms of the said lease cannot be looked into for the purpose of determining the rights and liabilities of the parties including the nature of activity being carried out by the appellant in the suit premises pursuant to the agreement dated 27th March, 2003.

7. Mr. Aniruddha Chatterjee the learned Senior Counsel appearing on behalf of appellant has submitted that the agreement between the parties creating tenancy would unmistakably show that the said tenancy was for manufacturing purpose. The appellant has admitted the said fact in the plaint and the plaintiff in fact has relied upon the said tenancy agreement in the plaint in support of their claim for eviction of the appellant from the suit premises.

8. Our attention is drawn to paragraph 2, 3(i), (ii), (iii) of the plaint and recitals of the lease agreement (clause 3 and 6 of the unregistered tenancy agreement in particular).

9. Mr. Chatterjee drawing our attention to the evidence of DW1 of the appellant in cross-examination where the said witness has stated that he was doing a business of rubber, submits that this evidence coupled with the admission of the plaintiffs in the plaint and the recitals in the tenancy agreement adequately prove that the said property was let out for manufacturing purpose. There is a clear mention of a factory shed in the tenancy agreement.

10. However, the learned Trial Judge has completely misdirected his mind and on misconception of law and fact has erroneously held that in an absence of any proof of manufacturing activity it cannot be said that the appellant is carrying on any manufacturing business and hence a notice of 6 months is not required before termination of the said tenancy.

11. Mr. Chatterjee submits that having regard to the fact that the plaintiff has admitted that the tenancy was for manufacturing purpose there is no requirement for the appellant to adduce any further evidence save and except what has been stated by the appellant during its evidence. In this regard, Mr. Chatterjee has relied upon the following decisions:

1.Joyanti Hosiery Mills & Anr. v. Upendra Chandra Das & Anr., reported in 1946 SCC Online Cal 28: (1945-46) 50 CWN 441: AIR 1946 Cal 3