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1978 Supreme(Goa) 3
Goa High Court
TITO MENEZES, J.C.
Antonio Pereira - Appellant
Versus
Upendra Venkatesh Juarkar and another - Respondents
Misc. Civil Appeal No. 37 of 1977
Decided On : 30 January 1978
S.K. Kakodkar, for Appellant; M.S. Usgaonkar, for Respondents.
An unregistered lease deed cannot be used to prove that the lease was for a period exceeding one year.
Headnote:
LEASE - TRANSFER OF PROPERTY ACT - SECTION 106 - REGISTRATION ACT - SECTION 49 - LEASE FOR A PERIOD EXCEEDING ONE YEAR - UNREGISTERED DEED - ADMISSIBILITY IN EVIDENCE - COLLATERAL PURPOSE - POSSESSION - BURDEN OF PROOF.
Fact of the Case:
The plaintiffs filed a suit against the defendant for perpetual injunction restraining the defendant from interfering with the suit land. The plaintiffs claimed that they were the owners of the suit land and that the defendant was a tenant who had been given a lease for a period of six years, which had expired. The defendant claimed that the lease was for an undetermined period from year to year and that it could not be terminated except by a proper notice given in terms of S. 106 of the Transfer of Property Act. The trial court granted an interim injunction in favor of the plaintiffs.
Finding of the Court:
The High Court held that the unregistered lease deed could not be used to prove that the lease was for a period of six years, as the duration of the lease was not a collateral purpose. The court also held that the plaintiffs had failed to prove that they had taken possession of the suit land from the defendant.
Issues: 1. Whether the unregistered lease deed could be used to prove that the lease was for a period of six years? 2. Whether the plaintiffs had taken possession of the suit land from the defendant?
Ratio Decidendi: 1. The court held that the duration of the lease was not a collateral purpose, and therefore the unregistered lease deed could not be used to prove that the lease was for a period of six years. The court relied on the provisions of S. 106 of the Transfer of Property Act and S. 49 of the Registration Act. 2. The court held that the plaintiffs had failed to prove that they had taken possession of the suit land from the defendant. The court noted that the affidavits in support of the case of the defendant spoke of concrete instances of the actual exercise of possession, whereas the affidavits of the plaintiff spoke in a vague manner or rather of taking of a symbolical possession.
Final Decision: The High Court allowed the appeal, set aside the order of the trial court, and vacated the injunction issued in favor of the plaintiffs against the defendant.
2. Shortly stated the facts of the case according to the plaintiff are as follows :-
The respondents/plaintiffs are the owners of two salt pans with their respective bunds. "In the year 1965 for the first time the plaintiffs let out to the defendant the said salt pan for extraction of salt. The contract was oral. It was given on 16-2-1965 for a rental of Rs. 1,600.00 per year." "Subsequently, in the year, 1969 the contract was reduced to writing with effect from 1st June, 1968." "Subsequently, fresh agreement was made from June 1971 up to May 1977 (break of first monsoon)". "The said contract dated 15-6-71 ended by efflux of time on 7th June, 1977. The break of monsoon was on 7-6-1977 in the year, 1977". "The defendant was served with a notice by the plaintiffs on 19-6-1977 and on the very day the plaintiffs took possession of the salt pan by going to the suit property." "On the next day, 20-6-1977 the defendant came to the residence of the plaintiff No. 1 and requested him that he may be given a fresh contract for enhanced rent." "The plaintiffs appointed a care-taker on 31-7-1977. The plaintiffs care-taker started fishing operations thereafter. The labourers did the work. However, the defendant was raising objection. For the first time the objection was raised on 8-8-1977." "The act of the plaintiffs invades the plaintiffs right and hence the suit for injunction." The plaintiffs prayed that "the defendant be restrained from interfering with the suit land and causing any obstruction to it." In support of their case the plaintiffs filed copies of the said two agreements of lease. In support of their application for interim injunction the plaintiffs filed a number of affidavits.
3. The case of the appellant/defendant is as follows :-
The suit land was given to the defendant on lease in 1965. The lease was for manufacturing purposes. The lease was for an undetermined period from year to year on a rental of Rs. 1,600/-per year. The alleged reduction to writing of the lease is not legal and cannot be used as evidence as the lease was not registered. The oral lease entered into in 1965 subsists up to the present day. The lease for extraction of salt being a manufacturing lease, was governed by the provisions of the Transfer of Property Act and was a lease from year to year. It could not therefore be terminated except by a proper notice given in terms of S. 106 of the Transfer of Property Act. Such notice was not given. There is no cause of action and the suit is not maintainable. Regarding possession, the defendant states that the plaintiffs did nothing more than going to the suit land. The defendants possession was not taken. The defendant continues in possession of the suit land as he was before. He continues to extract salt, cultivate paddy, catch fish in the pan and sell it as he used to do from the time the lease was given to him. The defendant was admittedly in possession of the suit property, till the date of the alleged dispute. He is therefore presumed to be in possession of the property until the plaintiffs prove otherwise. The burden falls on the plaintiffs to prove that they had dispossessed the defendant. The plaintiffs have failed to prove dispossession. Several affidavits are filed in support of the case of the defendant.
4. I shall first consider the question as to whether prima facie the plaintiffs have a cause of action in this suit. Admittedly, notice of termination of lease was not given. I have therefore to give my prima facie finding on the question as to whether such a notice was necessary.
5. The case of the defendant as put forth by his learned advocate Shri Kakodk
