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Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NOS.     5316-5318      OF     2012   (     @     SLP     (C)     NOS.     26049-51     OF     2011)   

Ahmedsaheb (D) by LRs. & Ors. ….Appellants

VERSUS Sayed Ismail              ….Respondent

WITH

SLP     (C)     NO.23457     OF     2011   

Shaikh Ahmed S/o Sk. Mehtab (D) by LRs …Petitioners

VERSUS

Mohd. Ismail S/o Syed Saheb …Respondent

J U D G M E N T

Fakkir Mohamed Ibrahim Kalifulla, J.

1. The parties in the above special leave petitions  

are common and the issue relates to the shop premises  

with regard to which proceedings were initiated before  

the Courts below which were dealt with by the High  

Court in the orders impugned in these petitions and,  

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therefore, the same are being disposed of by this  

common order.   

CIVIL     APPEAL     NOS.5316-5318     OF     2012(@     SLP    (C)     NOS.     26049-51     OF     2011)   

2. Leave granted.

Challenge in these appeals is the orders  of the  

learned Single Judge of the High Court of Bombay at  

Aurangabad  dated 06.05.2011 passed in  Second  

Appeal Nos. 148-150/1992.   

3. To trace the brief facts, the appellants herein  

filed Regular Civil Suit No.167 of 1974, RCS No.211 of  

1977 and RCS No.240 of 1980 against the respondent  

herein for recovery of arrears of rent for the period  

covering October 1971 to November 1980.  The suits  

were decreed by the trial Court and the same was also  

confirmed by the lower appellate Court.  However, the  

High Court set aside the judgment and decree of the  

Courts below on the sole ground that the rent deed  

marked as Exhibit-69 cannot be legally accepted in  

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evidence for the purpose of recovery of rent and  

consequently the decree granted in favour of the  

appellants based on such inadmissible document  

cannot be sustained.  While holding so, the High Court  

placed reliance on Anthony v. K.C. Ittoop & Sons &  

Ors.[2000 (6) SCC 394].   

4. Assailing the judgment of the High Court, the  

counsel for the appellants contended that even if the  

rent deed was not registered, as required under the  

provisions of the Registration Act and Transfer of  

Property Act, it can be relied upon for the collateral  

purpose of ascertaining the rent and as to whether the  

respondent was liable to pay such rent for the period  

for which it was claimed by the appellants.  Counsel for  

the respondent would, however, contend that there is  

no question of relying upon such document by way of  

collateral means and, therefore, the impugned  

judgment of the High Court does not call for  

interference.   

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5. Having heard learned counsel for the respective  

parties and having perused the material papers, we are  

constrained to state that though there can be no two  

opinion that the rent deed relied upon by the appellants  

being an unregistered document cannot form the basis  

to support the claim of the appellants for recovery of  

rent due, if we are able to find that in the case on hand  

there were other uncontroverted evidence  available on  

record to support the claim of the appellants that would  

be sufficient to uphold the decree for  recovery of rent  

from the respondent.  We also wish to point out that  

such other materials which existed should have been  

accepted by the High Court while examining the  

correctness of the order of the Courts below.  We also  

wish to state that that very decision which was relied  

upon by the High Court, while laying down the principle  

that an unregistered document cannot be legally  

accepted in evidence to support the claim of the parties  

in regard to the respective status as lessor and lessee  

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and vice versa as well as other recitals therein relating  

to rent, etc.,  in the light of the provisions contained in  

second para of Section 107 of  Transfer of Property Act  

itself, the status of the parties on the basis of  

undisputed facts pertaining to the demised premises as  

landlord and tenant can always be accepted and the  

rights of the parties can be worked out on that basis.

6. To elaborate our conclusions, we wish to point  

out that when the appellants filed the first suit in RCS  

No. 167/1974, the suit was laid for recovery of  the  

rent amounting to Rs. 3150.68/- being the rent payable  

by the respondent for the immediately preceding three  

years of the filing of the suit.  According to the  

appellants, it was let out on 19.10.1971 for one year on  

a monthly rent of Rs. 83.32/- based on a rent note and  

that from the very first date the respondent failed to  

pay the rent. It was also averred that while initially it  

was governed by Exhibit 68 in which the rent was fixed  

at Rs.83.32/- the rent was subsequently revised at Rs.  

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1150/- per year from 26.10.1973 under Exhibit 69.  It  

was contended that such revised rent was payable by  

the respondent from then onwards and that he failed to  

pay that rent as well.   

7. As against the above claim, according to the  

respondent the tenancy was entered into by him with  

the 8th respondent, namely, Abdul Rehman in the  

Second Appeal in the year 1968 and the rent was fixed  

at Rs.800/- per year.  As far as non-payment of rent  

was concerned the same was not disputed by the  

respondent.  The respondent however sought to explain  

it by saying  that  he  carried  out  repairs  by  

investing  a  sum  of Rs. 5000/- and the appellants  

agreed to adjust the said sum from the rents payable  

to him.  It was based on the above pleas that the  

parties went into trial.   

8. The trial Court after examining the evidence  

rendered a categorical finding that the stand of the  

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respondent was not supported by any legally  

admissible evidence, that the said Abdul Rehman  

himself admitted that the plaintiff Smt. Imambee wife  

of SK Mehtab Saheb who is none other than his mother  

was  the owner of the shop and that the shop was  

rented out to the respondent only by his mother  

Imambee. The other respondents were the brothers  

and sisters of Abdul Rehman who also took a clear  

stand that it was only Imambee who was the owner of  

the demised premises.  The Courts below  also reached  

a definite finding that right from 1971 the respondent  

has not paid any rent to the plaintiff or even to the said  

Abdul Rehman.   

9. As far as the adjustment of rent was concerned,  

the trial Court rendered a finding that though it was  

claimed in the written statement that the accounts  

registers were maintained to show the adjustment of  

rents to cover the expenses of repairs carried out in the  

demised premises, nothing was placed before the Court  

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in support of the said stand.  Exhibit-85 was relied  

upon by the respondent which was a receipt issued by  

the said Abdul Rehman for Rs. 300/- towards rent for  

the shop and that the said document did not in any  

way support the stand of the respondent.  Such  

findings were recorded by the trial Court in all the three  

suits based on the evidence before it.  The lower  

appellate Court also sifted the evidence in detail and  

concurred with the conclusions of the trial Court as  

regards the non-payment of rent right from day one of  

the respondent’s induction into the demised premises.   

10. Keeping the above undisputed facts in mind,  

when we examine the legal issue, at the very outset, it  

will have to be stated that even while holding that  

Exhibits 68-69 being unregistered documents cannot be  

accepted in evidence, the relationship of the appellants  

and the respondent as landlord and tenant was not in  

controversy. Even according to the respondent himself  

the rent payable was Rs.800/- per year which was  

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admittedly not paid by him right from day one when  

the tenancy commenced.  It was an admitted case of  

the respondent that the rent was due from him from  

October, 1971 till the third suit was filed. We are  

unable to appreciate as to how the appellants could  

have been non-suited solely on the ground that Exhibit-

69 was not admissible in evidence. It is needless to  

emphasize that admission of a party in the proceedings  

either in the pleadings or oral is the best evidence and  

the same does not need any further corroboration. In  

our considered opinion, that vital aspect in the case  

(viz) the admission of the respondent in the written  

statement about the rate of rent and the further  

admission about its non-payment for the entire period  

for which the claim was made in the three suits was  

sufficient to support the suit claim. The High Court  

failed to note the said factor while deciding the Second  

Appeal which led to the dismissal of the appeals. Even  

while eschewing Exhibit-69 from consideration, the  

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High Court should have noted that the relationship of  

landlord and tenant as between the plaintiffs and the  

defendants was an established factor and the rate of  

rent was admitted as Rs. 800/- per year.

11.  In this context, when we refer to the decision  

in Anthony (supra) relied upon by the High Court, we  

wish to point out that while the learned Judge placed  

reliance upon paras 8 and 11 of the said decision, the  

learned Judge ought to have looked into other  

paragraphs of the same decision where this Court has  

made a specific reference to the second para of Section  

107 of Transfer of Property Act to lay down the  

principle as under in paras 12 to 14:

“12. But the above finding does not  exhaust the scope of the issue whether the  appellant is a lessee of the building.  A lease of  immovable property is defined in Section 105 of  the TP Act.  A     transfer     of     a     right     to     enjoy     a    property     in     consideration     of     a     price     paid     or    promised     to     be     rendered     periodically     or     on    specified     occasions     is     the     basic     fabric     for     a     valid    lease.      The     provision     says     that     such     a     transfer    can     be     made     expressly     or     by     implication.      Once    

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there     is     such     a     transfer     of     right     to     enjoy     the    property     a     lease     stands     created  .  What is  mentioned in the three paragraphs of the first  part of Section 107 of the TP Act are only the  different modes of how leases are created.  The  first para has been extracted above and it deals  with the mode of creating the particular kinds of  leases mentioned therein.  The third para can  be read along with the above as it contains a  condition to be complied with if the parties  choose to create a lease as per a registered  instrument mentioned therein.  All other leases,  if created, necessarily fall within the ambit of  the second para.  Thus, dehors the instrument  parties can create a lease as envisaged in the  second para of section 107 which reads thus:

“All other leases of immovable property  may be made either by a registered instrument  or by oral agreement accompanied by delivery  of possession.”

“13.When lease is a transfer of right to enjoy  the property and such transfer can be made  expressly or by implication, the mere fact that  an unregistered instrument came into existence  would not stand in the way of the Court to  determine whether there was in fact a lease  otherwise than through such deed”.

14. When it is admitted by both sides that  the appellant was inducted into the possession  of the building by the owner thereof and that  the appellant was paying monthly rent or had  agreed to pay rent in respect of the building,  the legal character of the appellant’s possession  has to be attributed to a jural relationship  between the parties.  Such a jural relationship,  on the fact situation of this case, cannot be  

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placed anything different from that of lessor  and lessee falling within the purview of the  second para of Section 107 of the TP Act  extracted above.  From     the     pleadings     of     the    parties     there     is     no     possibility     for     holding     that    the     nature     of     possession     of     the     appellant     in    respect     of     the     building     is     anything     other     than     as    a     lessee  .”

(emphasis added)

12. When we apply the above principles laid down  

by this Court in juxtaposition with the stand of the  

respondent that the lease was in fact created in respect  

of the demised premises on an annual rent of Rs.800/-,  

and the trial Court, based on the evidence placed  

before it, reached a categorical finding that such lease  

was between the plaintiff and the respondent based on  

unimpeachable evidence available on record, having  

regard to the clear cut finding as regards the arrears of  

rent  payable by the respondent, the High Court ought  

to have upheld the decree for payment of arrears of  

rent by either directing the trial Court to calculate the  

actual amount payable by respondent or by modifying  

the decree to that extent.  

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13. In the written submissions of the appellants, it  

was contended that Exhibit 69, though an unregistered  

document, can still be relied upon for collateral  

purposes. In support of the said contention reliance  

was placed upon the decision of this Court  in  S.  

Kaladevi Vs. V.R. Somasundaram and Ors. -  

(2010) 5 SCC 407. The said decision is clearly  

distinguishable. In the case on hand Exhibit 69 was  

relied upon not for any collateral purpose but for the  

support of the main claim of arrears of rent. The suit  

was for arrears of rent and Exhibit 69 was filed to show  

the agreement of lease of the demised premises, the  

other terms of the lease and the rate of rent between  

the parties. Therefore, the contention that the  

document was filed merely for establishing some  

collateral transaction cannot be accepted. In that  

respect, the conclusion of the High Court as regards  

Exhibit 69 cannot be faulted. However, for reasons set  

out in the earlier paragraphs of our judgment we  

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reiterate that the claim of the appellants for recovery of  

rent was established by the Defendant’s own  

categorical admission about the rate as well its non-

payment right from day one.

14. As far the decision now relied upon (viz)  

Kaladevi(supra) is concerned, that was a case where  

the suit was laid for specific performance and stress  

was made on the proviso to Section 49 of the  

Registration Act which specifically exclude the  

mandatory requirement of registration in the  

substantive part of Section 49 read along with Section  

17 of the Transfer of Property Act.  This Court,  

therefore, held that the reliance placed upon the  

unregistered Sale Deed at least for the purpose of proof  

of an oral agreement of sale as a collateral transaction  

was permissible. This Court also made it clear that in  

such a situation the document in question can be  

received  in evidence by making an endorsement that it  

is received only as evidence of an oral agreement of  

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sale under the proviso to Section 49 of the Registration  

Act. Therefore, the said decision in the facts and  

circumstances of the case is clearly distinguishable.

15. We are, therefore, of the view that the  

dismissal of the suit on the simple ground that Exhibit  

69 was not a registered document cannot be accepted.  

Having regard to our above conclusion, the appeals  

deserve to be allowed.  Since the claim of the plaintiff  

has been lingering from the year 1971, we do not wish  

to relegate the parties once again to the Court below  

for the simple purpose of ascertaining the arrears.  

Since the respondent admitted the annual rent payable  

as Rs.800/- per year, the claim being from October  

1971 to November 1980, namely, for 9 years by simple  

arithmetic, the arrears can be worked out to a sum of  

Rs.2400/- in RCS No.167/1974, Rs. 2400/- in RCS  

No.211/1977 and another Rs.2400 in RCS No.  

240/1980, in all a sum of Rs.7200/-.

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16. Therefore, while upholding the judgment and  

decree of the trial Court as confirmed by the lower  

appellate Court in holding that the respondent is liable  

to pay arrears of rent for the period from October 1971  

to November 1980, we only modify the rent payable  

with actual rent due in a sum of Rs. 7200/- and the  

decree to that extent is granted.  The appeals stand  

allowed.  The impugned order of the High Court is set  

aside and the judgment and decree of the trial Court  

and the lower appellate Court stand restored with the  

above modification as regards the rent and the total  

amount due.

SLP     (C)     No.23457/2011   

17. This Special Leave Petition arise out of the  

judgment and decree passed by the Single Judge of the  

High Court of Judicature at Bombay in Civil Revision  

Application No.424 of 1987 dated 06.05.2011.  The  

said revision was preferred by the respondent  

challenging the order of the Rent Controller dated  

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13.01.1986 in file No.1979.R.C.A.3 in Rent No.1/86.  

The said petition was filed before the Rent Controller  

under Section 15 of Hyderabad Houses (Rent, Eviction  

and Lease) Control Act, 1954 for eviction of the  

defendant from House No.3-3-32 situated at Udgir.  

The plaintiff in RCS No.167/1974 along with her son  

Ahmed Saheb was the petitioner.  The plaint for  

eviction was on the ground that RCS No.167/74 for  

recovery of rent was decreed, that the default in  

making the payment of rent was willful, that the  

tenancy was terminated on 6.12.1978, that the  

statutory period of six months was over and, therefore,  

the respondent was liable to be evicted.  The  

respondent in the eviction petition did not file the  

written statement for a period of six years.  The rent  

controller found that even on the date of final hearing  

the tenant and his Advocate failed to appear and,  

therefore, it was decided ex parte. After hearing the  

arguments of the plaintiff the application for eviction  

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was allowed and the respondent was directed to deliver  

vacant possession. The respondent-tenant preferred file  

No.1979.R.C.A.3 in Rent No.1/86 before the District  

Judge, Latur.  The appellate Court declined to interfere  

with the order of the Rent Controller and the appeal  

was dismissed.   

18. By the impugned order, the High Court held  

that the respondent tenant should be directed to place  

on record the written statement by giving an  

opportunity of hearing.  While holding so the learned  

Judge also noted that since even the appellant did not  

lead any evidence, while permitting the respondent to  

file written statement, the appellant can be directed to  

comply with the requirements of Section 15 (2)(i) of  

the Hyderabad Houses (Rent, Eviction and Leases)  

Control Act, 1954 in respect of tendering of rent and  

whether default was committed by the respondent and  

accordingly set aside the orders of the Court below and  

remit the matter back to the Rent Controller for  

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rendering a decision in accordance with law by fixing a  

time schedule.   

19. Before us the learned counsel appearing for the  

respondent submitted that after the order of remittal  

the Rent Controller dismissed the application.  Learned  

counsel also contended that as against the order of  

dismissal by the Rent Controller, the petitioner has  

preferred an appeal before the District Judge which is  

stated to be pending.  Counsel for the petitioner in his  

submissions contended that since the petitioners in  

Special Leave Petitions are common if the judgment in  

Second Appeal No.148-150/1992 is to be set aside,  

there should be a direction for eviction as against the  

respondent.  Having regard to the subsequent  

development relating to the Rent Control proceedings  

in which the appeal preferred by the petitioner is stated  

to be pending before the Learned District Judge, we are  

not inclined to accede to the submission of the learned  

counsel for the petitioner though we have allowed C.A.  

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Nos.5316-5318/2012 (@ SLP (C) Nos.26049-51/2011  

preferred against the common judgment in Second  

Appeal Nos.148-150/92.  Such a shortcut method  

cannot be resorted to based on the submission of the  

learned counsel for the petitioner.  It is for the  

petitioners to work out their remedies in the Rent  

Appeal No. 2/2012 pending before the learned Principal  

District Judge, Latur in the light of the judgment passed  

in the Civil Appeal Nos.5316-5318/2012 (@ SLP© Nos.  

26049-51/2011). In the light of our above conclusion,  

we do not find any necessity to traverse from the  

various other submissions made in the written  

submission of the respondent.

20. In the light of the decision in C.A.Nos.5316-

5318/2012(@ SLP (C) Nos.26049-51/2011) and in the  

light of the fact that after the order of remittal passed  

in Civil Revision Application No.424 of 1987 dated  

06.05.2011, the Rent Control Proceeding having been  

concluded before the Rent Controller, it will have to be  

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held that SLP (C) No.23457/2011 has to be dismissed  

as having become infructuous.  Accordingly, while  

C.A.Nos.5316-5318/2012(@ SLP (C) Nos.26049-51 of  

2011) stand allowed with specific directions as regards  

the Rent arrears payable by the respondent, the  

Special Leave Petition No.23457 of 2011 stands  

dismissed as having become infructuous.   

There will be no orders as to costs.

                     …………………………...J.        [T.S. Thakur]

  ...............………….………J.         [Fakkir Mohamed Ibrahim Kalifulla]

New Delhi; July 19, 2012

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