IN THE HIGH COURT OF ANDHRA PRADESH AMARAVATI FRIDAY .THE TWENTY FIRST DAY OF FEBRUARY TWO THOUSAND AND TWENTY FIVE PRESENT THE HONOURABLE MS JUSTICE B S BHANUMATHI CIVIL REVISION PETITION NO: 1825 OF 2022 Petition under Article 227 of the Constitution of India aggrieved by the Order dated 15-02-2022 in I.A.No. 456 of 2019 in O.S.No. 1123 of 2019 On the file of the Court of the II Additional Junior Civil Judge (Junior Division) Vijyawada, Krishna District. Between: The Loyola College Society, Guntur Vijayawada rep. by its Procurator Br.G.Thomos Bellannine (At present rep by Fr.Singareddy Melchior Reddy) ...PETITIONER AND 1. M/s.Lalitha Real Estates Pvt. Ltd., Having its registered office Polytechnic College ITI Road Vijayawada - 520008 2. M/s.Lalitha Real Estates Pvt. Ltd, Having its registered office Polytechnic College rep. by its Directors (i)N.Lalitha Prasad S/o.Venkata Krishna Rao R/o.H.No .5-1-41/1. Ashok Nagar, Vijayawada - 520010 (ii)C.h.B.S Subramanyam S/o.Rama Chandra Rao R/o. 14-8-14, Nagabhushanam Street Hanumanpet Vijayawada 521003 near near ...RESPONDENTS 1 & 2 w.lA NO: 1 OF 7097 Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased to stay all further proceedings in O.S.No.1123 of 2019 on the file of the Court of the II Additional Junior Civil Judge. Vijayawada pending disposal of the above CRP. Counsel for the Petitioner; SRI. B V KRISHNA Counsel for the Respondents: SRI. The Court made the following Order: RAO T V P SAI VIHARI F APHC010485542022 !N THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3311] Friday, the twenty first day of February two thousand and twenty five I Present The Honourable Ms Justice B S Bhanumathi Civil Revision Petition No: 1825 of 2022 Between: Petitioner The Loyola College Society and ...Respondents M/s Lalitha Real Estates Pvt. Ltd and others Counsel for the petitioner: I.B. V. Krishna Rao Counsel for the respondents: ‘ I.T. V. P. Sai Vihari The Court made the following: ORDER: This revision petition under Article 227 of the Constitution of India is filed by the unsuccessful plaintiff against the order, dated 15.02.2022, dismissing I.A.No.456 of 2019 in O.S.No.1123 of 2019 on the file of the Court of II Additional Junior Civil Judge, Vijayawada, filed under Order XII, rule 6 read with section 151 CPC to pass a decree and judgment in favour of the plaintiff and against the defendant in view of the specific admissions made by the defendant in the written statement. 2 C.R.P.No.1825 of 20^^ Heard Sri B.V.Krishna Rao, learned senior counsel appearing for the petitioner / plaintiff and Sri T.V.P.Sai Vihari, learned counsel appearing for the respondents / defendants. 2. The case of the plaintiff, in brief, is as follows: 3. The plaintiff is the absolute owner of land admeasuring 6000 square yards situated in Sy.No.446 at campus of Andhra Loyola College, Gunadala Village, within the Municipal Corporation limits of Vijayawada, Krishna District. a. The schedule land was given in lease to tl^e defendant No. 1-M/s. Lalitha Real Estates Pvt. Ltd., being represented by defendant No.2, vide a lease deed, dated 31.07.1990, having been executed between the plaintiff and the defendants at Vijayawada. As per the said lease deed, the lease period was for 25 years commencing from 01.08.1990 and determined on 01.08.2015. The plaintiff permitted the defendants to construct a recreational center, in accordance with the approved plans by the concerned authorities, which was later named as “M/s. Executive Club”. However, it was expressly agreed that after determination of the lease period of 25 years, the entire building along with the leased land should be delivered possession to the plaintiff / lessor by the defendants / lessees, by attorning all the sub-lessees, if any, to the plaintiff / lessor without claiming any cpmpensation. b.. At the time of determination of the lease period on 01.08.2015, the plaintiff issued legal notice dated 28.04.2015, intimating the factum of determination of the lease and the plaintiff specifically asked the lessee to deliver possession of the leased premises along with the The lessee, however, gave reply vide three letters, dated 30.04.2015, 04.05.2015, and 16.07.2015, seeking renewal of the lease period, for which the plaintiff did not show interest and c. constructions over it. 3 BSB, J C.R.P.No.1825 of 2022 insisted on delivering the demised premises, along with the constructions thereon. As the negotiations for the renewal had not materialized, the lessee assured that the entire leased premises, along with the constructions thereon would be delivered in the beginning of I 2019. The lessee was, however, depositing the last enhanced amount from August, 2010 to 31.07.2015 being Rs.34,980/- per month from the date of determination of the lease, i.e., 01.08.2015. The lessee was also paying the GST from the date of its introduction. The said amounts were being received from the lessee under a letter of protest, thereby, making the lessee a tenant holding over. Since the lease period was determined on 01.08.2015 and the plaintiff was insisting the lessee to vacate the premises as agreed and receiving the rental amount from the lessee under protest, the lessee was continuing in the leased premises. Hence, in the absence of a registered instrument of lease between the plaintiff and the defendants, the lease was deemed to be from month to month and accordingly, a 15 days legal notice, dated 14.06.2019 was issued to the defendants to vacate the demised premises within 15 days by 30.06.2019. The lessee also issued a reply notice, dated 25.06.2019 with untenable contentions and threatened the plaintiff not to file the suit for eviction. d. The defendant filed written statement admitting; e. existence of jural relationship of lessor and lessee (landlord and tenant) between the plaintiff and defendant which is created by the lease deed executed on 31.07.1990; notice of termination under section 106 of the Transfer of Property Act, 1882 (in short T.P.Act’) has been duly served; and (i) (ii) 4 BSB CV . J C.R.P.No.l825of 2022 (iii) the rate of rent is not less than Rs.3,500/- (rent @ Rs.41,276/- per month) in original monthly acknowledgments issued and retained under protest by plaintiff under the plaint document No.6. In view of the above admissions made by the defendants in the written statement and reply notice, no evidence is required to be led and a decree and judgment may straightaway be passed or else the plaintiff suffers extreme hardship of a protracted litigation and will be put to loss. Hence, this application was filed. f. The respondent / defendant filed counter'opposirig the petition and contending as follows; 3. The suit requires judgment and findings on complicated questions of law, such as admissibility of lease deed which is insufficiently stamped and unregistered. The deed is opposed to be received in evidence even for collateral purposes, such as possession. There is no admission in the written statement within the meaning of Order XII, rule 6 CPC which entitles the petitioner to seek the relief. The suit is being contested by the defendants claiming perpetual tenancy. The admission of negotiation in respect of extension of lease by another period of 25 years disentitles the plaintiff to the relief. The lease deed and quit notice are stoutly challenged in the written statement as illegal. The determination of tenancy by a quit notice was also challenged. The cause of action is also disputed. The defendants claimed compensation for the superstructures admittedly constructed by the defendants. The petition is not maintainable either in law or on facts and liable to be dismissed in limine. 4. On the basis of the above pleadings, the following point was framed for determination: 5 BSB, J C.R.P.No.1825 of 2022 Whether there are unequivocal admissions in the written statement filed by the respondents to meet the requirements contemplated under Order XII, rule 6 CPC as such the petitioner / plaintiff is entitled to the decree for possession of the suit property under Order XII, rule 6 CPC? The trial Court dismissed the petition opining that the averments in the written statement do not fall in the category of an unqualified admission and the controversy could be decided after the parties lead evidence. 5. Aggrieved by the same, the plaintiff preferred this revision 6. petition. 7. The revision petitioner mainly raised the following grounds: The trial Court failed to exercise the jurisdiction vested in it; that the trial Court failed to understand the object of Order XII, rule 6 CPC; that the defendants admitted about the relationship of landlord and tenant between defendants and the plaintiff, termination of lease by lapse of time and receipt of notice issued by the plaintiff under section 106 of the T.P. Act and therefore, the trial Court ought to have allowed the petition as all the required conditions have been fulfilled; that the reasons assigned by the trial Court are not valid; that the trial Court, without appreciating the judgments cited on behalf of the petitioner, had erroneously dismissed the application holding that an elaborate trial is required; and that it is settled law in relation to Order XII, rule 6 CPC that admissions could be oral or in writing and even inferred from the facts and circumstances of the case, and therefore, the trial Court ought to have decreed the suit considering all the documents filed along with the suit. 6 BSB,j C.R.P.No.1825 of 2022 8. POINT: Whether the lessor in this case is entitled to a judgment on admissions of the lessee in the written statement, if so, whether the trail Court’s order is liable to be interfered under Article 227 of the Constitution of India? 9. Order XII, rule 6 C.P.C, reads as follows; “6. Judgment on admissions:- (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions. (2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn upon in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.” 10 (a). The learned counsel for the lessee referred to the decision of the Supreme Court in Himani Alloys Ltd Vs. Tata Steel Ltd regarding the scope and nature of the jurisdiction under Order XII, rule 6 C.P.C. as follows; 1 “11. It is true that a judgment can be given on an “admission” contained in the minutes of a meeting. But the admission should be categorical. It should be a conscious and deliberate act of the party making it, showing an intention to be bound by it. 1 (2011) 15 see 273 7 BSB, J C.R.P.No.1825 of 2022 Order 12 Rule 6 being an enabling provision, it is neither mandatory nor peremptory but discretionary. The court, on examination of the facts and circumstances, has to exercise its judicial discretion, keeping in mind that a judgment on admission is a judgment without trial which permanently denies any remedy to the defendant, by way of an appeal on merits. Therefore unless the admission is clear, unambiguous and unconditional, the discretion of the Court should not be exercised to deny the valuable right of a defendant to contest the claim. In short the discretion should be used only when there is a clear “admission” which can be acted upon. (See also Uttam Singh Duggal & Co. Ltd. vs. United Bank of India [(2000) 7 SCC 120], Karam Kapahi Vs. Lai Chand Public Charitable Trust [(2010) 4 SCC 753] and Jeevan Diesels and Electricals Ltd. Vs. Jasbir Singh Chadha [(2010) 6 SCC 601]. ...” (b) He further referred to another decision of the Supreme Court in Vikrant Kapila and another Vs. Pankaja Panda and others ^ wherein the above referred decisions in Uttam Singh Duggal (supra) and Himani Alloys (supra) were followed with regard to the ambit of Order XII, rule 6 C.P.C. and also the scope of “admissions” as follows; “38. In the same judgment (Uttam Singh), the scope and effect of "admissions" was examined and it was held that "admissions generally arise when a statement is made by a party in any of the modes provided under sections 18 to 23 of the Evidence Act, 1872". ^2023 SCC Online SC 1298 8 C.R.P.No.1825 of 39. Further, this Court in Uttam Singh Duggal (supra), while adverting to section 17, Indian Evidence Act, 1872, which provides for admissions through statements in oral, documentary and in electronic form, expanded the scope of admissions and recognized that "admissions are of many kinds they may be considered as being on the record as actual if that is either in the pleadings or in answer to interrogatories or implied from the pleadings by non-traversal. Secondly as between parties by agreement or notice". The case on hand considers an alleged admission in the pleading including the reply given on admission and denial of documents. The provisions under Rule 5 of Order VIII, Rule 6 of Order XII, and Rules 1 and 2 of Order XV of the CPC, enable a court to pronounce a judgment on admission. The court is called upon to exercise judicial discretion conferred on it by the CPC and the Indian Evidence Act, 1872. The judicial discretion shall always be in addition to the provisions covering the judgment on admission and guided by the best of wit and wisdom of the Court in pronouncing a judgment on admission. The bottom line is that while ensuring judicial discretion, the court does not avoid a trial on an issue where a trial is needed, and findings recorded: alternatively, the court does not try an issue in which there is no contest between the parties. The weighing of options or judicial discretion is dependent on the peculiar circumstances of the case or the nature of the controversy that the court is considering.” 9 BSB, J C.R.P.No.l825 of 2022 (c) He referred to a decision of High Court of Delhi in Dinesh Sharma Vs. Krishna Kainth^ wherein the tests for application of Order XII, rule 6 C.P.C. were discussed at paragraphs 28 and 29 as follows: “28. ... The law with regard to the interpretation given to Order XII Rule 6 of the CPC is well settled in terms of the judgment of the Supreme Court in the case of Himani Alloys (supra), and also in terms of the judgment by the Division Bench of this Court in the case of Anupama Bansal Vs. Suraj Bhan Bansal, RFA{OS) 48/2019. The Division Bench of this Court has in paragraphs 20 to 24 held as under: 24. In Delhi Jal Board Vs. Surendra P. Malik reported as (2003) 104 DLT 151, a Division Bench of this Court had laid down the following tests for pronouncing a judgment on admission:- "9. The test, therefore, is (i) whether admissions of fact arise in the suit, (ii) whether such admissions are plain, unambiguous and unequivocal, (iii) whether the defense set up is such that it requires evidence for determination of the issues and (iv) whether objections raised against rendering the judgment are such which go to the root of the matter or whether these are inconsequential making it impossible for the party to succeed even if entertained It is immaterial at what stage the judgment is sought or whether admissions of fact are found expressly in the pleadings or not because such admissions could be gathered ^2022 see Online Del 1142 10 C.R.P.No.1825 of 2022 even constructively for the purpose of rendering a speedy judgment." 29. ... There is no dispute with regard to the proposition laid down in the said judgments in as much as, (i) a judgment on admission under Order XII Rule 6 of the CPC is not a matter of right, rather is a matter of discretion of the Court: (ii) to constitute a clear, unequivocal, unambiguous and unconditional admission, the Trial Court has to see the overall effect of the pleadings and documents. For a judgment on admission to be passed under Order XII Rule 6 of the CPC, the Court has to see as to whether the admission of facts is plain, unambiguous, and unequivocal and go to the root of the matter, which would entitle the other party to succeed, (iii) if the issue raised, involve the mixed question of fact and law, the same has to be adjudicated by way of evidence; (iv) the discretion conferred under Order XII Rule 6 of the CPC is to be exercised judiciously and not arbitrarily.” (d) In Payal Vision Ltd Vs. Radhika Choudhar^, the Supreme Court held as follows: “7. In a suit for recovery of possession from a tenant whose tenancy is not protected under the provisions of the Rent Control Act, all that is required to be established by the plaintiff- landlord is the existence of the jural relationship of landlord and tenant between the parties and the termination of the tenancy either by lapse of time or by notice served by the landlord under Section 106 of the Transfer of Property Act. So long these two aspects are not in dispute the Court can pass a as "(2012) 11 see 405 11 BSB, J C.R.P.No.1825 of 2022 decree in terms of Order XII Rule 6 of the CPC, which reads as under; ... 8. ... Having said that we must add that whether or not there is a clear admission upon the two aspects noted above is a matter to be seen in the fact situation prevailing in each case. Admission made on the basis of pleadings in a given cannot obviously be taken as an admission in a different fact situation. That precisely is the view taken by this Court Diesels & Electricals Ltd. Vs. Jasbir Singh case in Jeevan Chadha [(2010) 6 see 601] relied-upon by the High Court where this Court has observed; “Whether or not there is a clear, unambiguous admission by one party of the case of the other party is essentially a question of fact and the decision of this question depends on the facts of the case. The question, namely, whether there is a clear admission or not cannot be decided on the basis of a judicial precedent. Therefore, even though the principles in Karam Kapahi and others Vs. M/s. Lai Chand Public Charitable Trust and another [2010 (3) SCALE 569 # (2010) 4 see 753] may be unexceptionable they cannot be applied in the instant case view of totally different fact situation.” in (e) In Surjit Sachdev Vs. Kazakhstan Investment Services Private Limited and others^ it was held at paragraph 17 as follows; The question now is that whether there is any admission or not so as to entitle the plaintiff to have a decree for 17. possession. The factors which deserve to be taken into ® 1997 sec OnLine (Del.) 129 (D.B) 12 BSB,j C.R.P.No.1825 of 2022 consideration in order to enable the Court to pass a decree in plaintiffs favour as regards possession in such like suit, are; (a) existence of relationship of lessor and lessee or entry in possession of the suit property by defendant as a tenant; and (b) determination of such relation in any of the contingency, as envisaged in section 111 of the Transfer of Property Act. One of the modes stated therein is by efflux of time limited by the lease. Only on unequivocal admission of the above two factors will entitle the plaintiff to a decree on admission. Admission need not be made expressly in the pleadings. Even on constructive admissions Court can proceed to pass a decree in plaintiffs favour.” [This view was followed in M/s. Uptron Powertronics Ltd., Vs. G.L.Rawal, AIR 1999 Del 377 (DB)] Each case is to be examined with reference to the admissions and contentions. The main ingredients required to order eviction of a tenant are;- 11. (i) Jural relationship: (ii) Termination of lease; and (iii)Subject matter jurisdiction of a civil Court. There is no dispute as to the subject matter of jurisdiction. Insofar as jural relationship is concerned, both parties agree that the petitioner is the owner and the respondent is tenant, however, the petition is opposed on the grounds that a trail is required as there are contentious issues that the lease is in perpetuity and an unregistered document of lease cannot be foundation for seeking the relief and also that compensation for the structures admittedly made by the tenant is sought in the written statement. In support of the ground of lease in perpetuity 12. J 13 BSB, J C.R.P.No.1825 of 2022 by extension of lease, it was further contended that the lessee is entitled to the benefit of section 53A the T.P. Act as the building was constructed spending huge amount and used for a club assuring life membership to its members. Before proceeding further, it is apt to mention certain relevant provisions of law which have a bearing on the nature of the tenancy and the possession in the light of the admitted facts and the scope of the use of the unregistered lease deed, to examine the extent of use of the statements in the deed or the pleadings for the purpose of the relief sought. 13. 14.(a) As per section 105 of the T.P. Act, a lease can be made for a certain time or in perpetuity and as per section 106 of the T.P. Act, in the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease, from year to year, terminable on the part of either lessor or lessee by six months’ notice and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen (15) days’ notice and such a notice shall be in writing and signed. As per section 107 of the T.P. Act, a lease of immovable property from year to year or for any term exceeding one year or reserving a yearly rent can be made only by a registered instrument and all other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. (b) That apart, as per section 17(1)(d) of the Registration Act, 1908, till it was amended by the A.P. Act 4 of 1999 with effect from 01.04.1999, lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent shall be registered 14 BSB, j C.R.P.No.l825 of2022 % State of Andhra Pradesh ^ and after the amendment applicable to the irrespective of the period of lease or reservation of yearly rent, lease of immovable property shall be registered. As per section 49(a) of the no document required by section 17 thereof by any provision of the T.P. Act, to be registered shall affect immovable property comprised therein provided that document affecting immovable property and required T.P. Act, to be registered may be received Registration Act, 1908, or any an unregistered by that Act, or the as evidence of a contract in a suit for specific performance under Chapter II of the Specific 1963 or as evidence of Relief Act, any collateral transaction not required to be effected by registered instrument. Section 35 of the Stamp Act, 1899, prescribes that any instrument chargeable with duty shall not be admitted in evidence unless it is duly stamped, however, the section provides for remedying the defect by paying the stamp duty required or deficit with penalty prescribed therein. same It is further contended that an unregistered lease deed can be used for the benefit of part performance under section 53A of T.P. Act. (c) The determination of lease can occur under different modes Act. Thus, as per section as specified under section 111 of the T P 111(a), a lease of immovable time limited thereby. Amongst the other property can be determined by efflux of modes, the other relevant is under section 111(h) as per which a lease of immovable property determines on the expiration of notice to determine the lease, or to quit or of intention to quit, the property leased, duly given by one party to the other. Therefore, by a notice to determine the lease Of the period mentioned in the notice one on the expiration a lease gets terminated. As per section 116 of the T.P. Act if a lessee (or under-lessee) of property remains in possession thereof after the determination of the lease, and the lessor (or his legal representative) accepts rent from the lessee (or 15 BSB, J C.R.P.No.l825 of2022 under-lessee), or otherwise assents to his continuing in possession, the lease is, (in the absence of an agreement to the contrary), renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106 of the T.P. Act. Thus, section 116 of the T.P. Act speaks of effect of holding over. If rent is accepted with an intention to continue the lease even after issuing quit notice under section 111(h) of the T.P. Act, it would also result in waiving such notice as per section 113 of the T.P. Act and thereby, the resultant continued tenancy under section 116 of the T.P. Act can be terminated only by issue of fresh notice, subject to other terms, if any. In the present case, as the lease deed was executed on 31.07.1990 admittedly for 25 years, it must be a duly stamped registered instrument for its admissibility in evidence, but it was not registered. Its effect and the extent of its use can be examined in the light of various decisions referred in this regard. 15. In Surjit Sachdev Vs. Kazakhstan Investment Services Private Limited and others, (supra), at paragraphs 22 to 24 and 26, it was held as follows; (a) “22. The next question that incidentally would now arise is that whether it would have been necessary for the plaintiff to file a fresh suit after serving a notice of termination of the lease or treating the period of extended lease to have come to an end? Contention of the learned Counsel for the defendants has also been that on expiry of the period of renewed lease, possession of defendant No. 1 will be that of a tenant holding over on month-to-month basis and determination of such a tenancy would be necessary by serving notice under Section 106 of the 16 C.R.P.No.1825 of 2022 Transfer of Property Act and there is no question of determination of holding over of tenancy by efflux of time under Section 111 of the Act. 23. For holding over of tenancy it is absolutely necessary that the lessee is allowed to continue to remain in possession of the property after expiry of the period of lease. ... Holding over is an act after expiration of the term, which does not necessarily create a tenancy of any kind but gives a right to the tenant holding over to continue in possession. Section 116 of the , Transfer of Property Act provides for the effect of holding over and says: ... 24. The basis of Section 116 of the Transfer of Property Act is a bilateral contract between the earstwhile landlord and erstwhile tenant. ... 26. Reference may be made to a decision of the Supreme Court in Smt. Shanti Devi Vs. Amal Kumar Banerjee, (1981) 2 SCC 199: AIR 1981 SC 1550, wherein it was held that where the lease was for a definite period and the said period expired by efflux of time and there was no allegation of lessee holding over, in such a case there was no requirement of issuing notice for determination of the lease. ...” In M/s. Uptron Powertronics Ltd., Vs. G.L.Rawal ®, it is held that though initially lease for more than one year period was under a registered instrument, unless it is extended by another registered instrument, continuation of lease under such circumstances means that the tenancy was only on a month-to-month basis which can be determinable by a notice under section 106 of the T.P Act. (b) 'AIR 1999 Del 377 (D.B) 17 Bse, j C.R.P.No.1825 of 2022 In Anthony Vs. K.C. Ittoop and sons and others^, the Supreme Court, observed that the appetlant before it cannot be held to be a lessee by virtue of an unregistered lease deed as no lease exceeding one year is created there under on account of the inhibiting provisions of section 107 of the TP Act and sections 17(1) and 49 of the Registration Act, 1908, nonetheless, as section 105 of the TP. Act states that a lease can be made expressly or by implication, unregistered deed would not restrict the court to decide a fact of lease otherwise than through such deed and so accepted relationship of a lessor and lessee in relation to possession of the property. The consequences of an unregistered lease deed were held as follows: (c) “16. ... Non-registration of the document had caused only two consequences. One is that no lease exceeding one year was created. Second is that the instrument became useless so far as creation of the lease is concerned. Nonetheless the presumption that a lease not exceeding one year stood created by conduct of parties remains unrebutted.” (d) In Modern Food Industries (India) Ltd., Vs. I. K. Malik and others®, at paragraphs Nos.11, 14 and 15 of the decision of the Division Bench of High Court of Delhi, it was held as follows: “11. After hearing counsel for the parties and perusing the record, we are of the considered view that the Clauses of the lease deed or renewal of deed dated 3.7.1992 cannot be looked into for want of registration, if a document is inadmissible for non-registration, all its terms are inadmissible including the one ’(2000) 6 see 394 ®(2002) 63 DRJ 451 (D.B) 18 dealing with the landlord's permission for the renewal of the lease and the increase of the rent. ... 14. Therefore, a document which requires compulsory registration is not admissible for want of registration to prove the terms of the lease. It is admitted only to prove the character of the possession of the person who holds the property. Therefore, even the proviso to Section 49 of the Registration Act is of no help to the appellant. At best the appellant can prove the nature of his possession but not the terms of the lease. Admittedly creation of lease is not a collateral purpose nor the terms of the lease are collateral within the meaning of Section 49 of the Registration Act as held by Supreme Court in the case of Satish Chand Vs. Goverdhan Das, AIR 1984 SC 413. 15. As already pointed out above, a lease or a renewed lease even through letter if not registered, its terms cannot be looked into. It has been so held by the Supreme Court in the case of D.D.A Vs. Durga Chand Kaushik, AIR 1973 SC 2609 which observations are reproduced as under; "A renewal of lease is really the grant of a fresh lease it is called a 'renewal' simply because it postulates the existence of a prior lease which generally provides for renewals as of right. In all other aspects, it is really a fresh lease.” (e) In Rajiv Srivastava Vs. Sanjiv Tuli & Another®, by efflux of time, on determination of lease initially created under a registered deed, oral extension of lease was not accepted by a Division Bench of the High Court of Delhi and judgment on admission in written statement was held enough to pass judgment under Order XII, rule 6 CPC. ® AIR 2005 Del 319 (DB) 19 BSBJ C.R.P.No.1825 of 2022 (f) In Sevoke Properties Ltd. Vs. West Bengal State Electricity Distribution Co. Ltd./® the Supreme Court held as follows: “11. In terms of the provisions of Section 107, a lease of immovable property for a term exceeding one year can only be made by a registered instrument. Admittedly, in the present the indenture of lease has not been registered. In consequence, the contents of the indenture would be inadmissible in evidence for the purpose of determining the terms of the contract between the parties. This is the plain consequence of the provisions of Sections 17 and 49 of the Registration Act, 1908. The only purpose for which the lease can be looked at is for assessing the nature and character of the possession of the respondent.” “13. ... In the case before this Court noted above, the defendants had not admitted that the term of the lease was for a period of nine years. This was noted by the Court, as we have extracted earlier. On the contrary, we find that in the present there is an express admission on the part of the defendants that they were in occupation under the lease agreement for a period of fifteen years with effect from 1981 and that the period of lease expired on 24 May 1996. Such a specific admission on the part of the defendants is contained in paragraph 22 of the written statement. Under section 111(a), a lease of immovable property determines by efflux of time limited thereby. Once this be the position, there can be no manner of doubt that the position of the respondent on the expiration of the lease was of a tenant at sufferance. In the circumstances, there necessity of a notice for the termination of the lease case case was no 10 AIR 2019 sc 2664 20 BSB, j C.R.P.No.1825 of 2022 under the provisions of section 106. The respondent having squarely admitted in its written statement that it was in occupation for a term of fifteen years, that term having expired, the lease stood determined by efflux of time. Once the lease stood determined by efflux of time, there was no necessity for a notice of termination under section 106. 14. In coming to this conclusion, we are fortified by the decision of this Court in R. V. Bhupal Prasad Vs. State of A. P., (1995) 5 see 698, where this Court held: “8. Tenant at sufferance is one who comes into possession of land by lawful title, but who holds it by wrong after the termination of the term or expiry of the lease by efflux of time. The tenant at sufferance is. therefore, one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. ... 16. The learned counsel for the lessee contended that all these cases were decided after trail and cannot be applied to the case on hand in which the lessor seeks judgment on admission before full-fledged trail. But, the principles of law would be the same whether it be on admission or after trial. When a lease is covered by an unregistered lease deed, since it cannot be used for the purpose of enforcing its terms as to period of lease etc., the tenancy there under becomes month to month so long as the owner permitted the tenant to continue under lease and when the owner terminates it by notice under section 106 of the T.P. Act, the tenancy is at sufferance. In this case, the nature of tenancy from inception till 31.07.2015 shall be regarded as tenancy from month to month for want of registered lease deed and the tenancy continued with consent of the owner till 31.07.2015. The respondents contended that the lease was further extended by 25 years under an oral 21 BS8, J C.R.P.No.1825 of 2022 understanding and the rent was being continuously paid even after the exchange of the correspondence between the lessor and the lessee. Law requires even renewal of lease must be through a registered instrument, but there is no written document, much less registered one, for renewal of the lease. Though the legal notice dated 28.04.2015 was issued by the owner terminating the lease by 31.07.2015, the tenant was allowed to continue in possession of the property beyond 31.07.2015 stating that the lessee agreed to deliver the demised premises along with the constructions in the beginning of 2019 and the rent was received under letter of protest and the tenancy was month to month which was determined by another notice dated 14.06.2019, but argued that the lessee continued as ‘tenant at sufferance’. If the lessor accepted the rent or assented to the lessee to continue in possession even after determination of lease by quit notice dated 28.04.2015 under section 106 of the T.P. Act, the lease would still continue to be from month to month in terms of section 116 of the T.P. Act, which act also results in waiver of the quit notice as provided in section 113 of the T.P. Act on showing intention to treat the lease as subsisting. 17(a). The learned senior counsel for the lessor argued that mere acceptance of rent does not amount to automatic waiver irrespective of intention of the lessor by referring to the decision of the High Court of Andhra Pradesh in Purohit Lakshmanchandji Vs. Vetcha VSR Murty^\ wherein the landlord initially accepted the monthly rent under receipt even after issue of the quit notice, without knowing the legal consequences and later on, under receipts with endorsement “without prejudice” as per the legal advice; and the High Court held that mere acceptance of rent without intention to treat the lease to subsist does not amount to waiver the notice as section 113 of the T.P. Act itself AIR 1976 AP 428 C 22 BSB, J C.R.P.No.1825 of 2022 States that the receipt of the rent must be with intention to treat the lease as subsisting, and that such view of the Court is supported by a catena of decisions. He further submitted that in each case the facts would determine the effect of receipt of the rent after issuance of the quit notice and in the present case the documents of the lessee would clearly show the intention of the lessor in treating the lease as not subsisting by the clear endorsement imagination it can be treated as waiver of the notice section 113 of the T.P. Act. receipts filed by and by no stretch of as required under (b) He further argued that there is no plea of waiver and there must be a specific plea of waiver of quit notice because of and referred to the decision in Hashmatrai & another Vs. Tarachand and others acceptance of rent 12 wherein there was no plea taken in the written statement filed initially by the original defendant or subsequently by his legal representatives and the Court accepted the contention that it would not be open for the lessees to raise a question about waiver of notice without there being any plea in that respect in as much as the said plea is based on facts. 18. No contrary view has been shown. The receipt for payment of rent clearly shows an endorsement of receiving the rental amount under protest. Therefore, such an acceptance is obviously not an acceptance of rent voluntarily allowing the tenant to continue with intention to treat the lease as subsisting so as to regard the quit notice as waived as per section 113 of the T.P. Act, or to treat the lease as from month to month within the meaning of section 116 of the T.P. Act. But T.P. Act is not limited to section 116 of the mere acceptance of rent, but would operate when the lessor otherwise assents to the lessee continuing in possession. So, since after 31.07.2015, the lessee was allowed to AIR 1979 Bom 95 23 BSB, J C.R.P.No.1825 of 2022 continue to be in possession, though till the beginning of the year 2019 as per the version of the lessor, the nature of the tenancy continuecl“to be from month to month and the lessor also pleaded the same. Again by giving another quit notice dated 14.06.2019, the lease was determined and thereafter there is no assent for the lessee to continue in possession. The lessee also falls back on the alleged consent / oral agreement in the year 2015, which is not valid in law, to plead that the renewed lease is for another 25 years or perpetual. No amount of evidence in the trial can alter the legal position. As such, after 30.06.2019, the date by which the tenancy got determined by virtue of the second quit notice, the lessee is a tenant at sufferance and no fresh notice is required for termination of lease or to file the suit for eviction and recovery of possession. A tenant at sufferance has only legal right akin to a trespasser. Therefore, by filing a suit for eviction and recovery of possession, a lessor can get such a tenant evicted and recover possession of the property under lease. Though it was neither raised in the counter nor was it argued before the trial Court by the lessee, it was vehemently contended here that the relief of recovery of possession of the property by evicting the tenant can be resisted on the ground of part performance under section 53A of the T.P. Act, that too, basing even on an unregistered lease deed. The lessee further contended that in furtherance of the assurance given for continuity of lease, a building was constructed and life members were registered and the building is required for running the club and therefore, the lessee is entitled to the possession by virtue of section 53A of the T.P. Act. First of all, though a document which requires registration is not registered can be used for legally permitted purpose, it cannot be considered in evidence for any purpose unless it is^duly stamped or impounded as required under the provisions of the 19. 24 BSB, J C.R.P.No.1825 of 2022 Stamp Act, 1899. No step has been taken to make it considerable in evidence. 20. Section 53A of the Transfer of Property Act, 1882 is excerpted hereunder; 53A. Part performance;- Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms to constitute the transfer can be ascertained with reasonable certainty. necessary and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract. then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.” 25 BSBJ C.R.P.No.1825 of 2022 A plain reading of the provision indicates that though the transfer is not affected as per law, including registration, both the transferor and the transferee have rights as spelled therein and thus the transferee can protect the possession and the transferor can seek eviction subject to the terms in the written signed contract. 21. The learned counsel for the tenant relied on the decision in UOI Vs. K.C.Sharma & Company and others wherein the Supreme Court held as follows: 22. “As it is clear from the evidence that the respondents were put in possession and they continued in possession by cultivating the land the said judgments would not render any assistance in support of the case of the appellants. On the other hand in the case of Maneklal Mansukhbhai Vs. Hormusji Jamshedji Ginwalla & Sons, AIR 1950 SC 1, relied on by learned senior counsel for the respondents it is clearly held by this Court that defence under Section 53A of the Transfer of Property Act, 1882 is available to a person who has agreement of lease in his favour though no lease has been executed and registered. Similar proposition is also approved in the judgment of this Court in the case of HamzabI & ors. v. Syed Karimuddin & ors, (2001) 1 see 414, wherein this Court has held that Section 53A of the Transfer of Property Act, 1882 protects the possession of persons who have acted on a contract of sale but in whose favour no valid sale deed is executed or registered. As it is clear that respondents were put in possession and the Panchayat has acted upon their proposal for grant of lease said case law supports the case of the respondents.” 13 (2020) 15 see 209 26 BSB, J C.R.P.No.l825of 2022 The contention of the lessee was resisted by the learned senior counsel for the petitioner stating that so long as the lease is in subsistence, the tenant would be protected, but when once lease got legally terminated, the protection under section 53A of the TP. Act does not come for aid of the tenant. He further contended that the protection under section 53A is applicable not only to the lessee but also to the lessor and that a concluded signed contract is necessary for claiming benefit under section 53A of the Act, whereas in the present case, there is no such concluded contract for the alleged renewal of the lease which by itself is a contract separate from the previous contract of lease, even if the earlier contract permits renewal of lease. 23. 24. The learned senior counsel further relied on the following decisions in support of his contentions on section 53A of the Act: (i) Ram Pratap Kayan Vs. National Petroleum Co. Ltd explaining the observation in Dantmara Probodh Tea Co. Ltd. Vs. Kumar Das'*®, wherein the Court refuted the argument that section 53-A of the T.P. Act conferred a right only on the transferee and it clarified that the only right conferred on the transferee is the right to protect his possession and that the section enables the transferor to enforce his contractual rights against the transferee in respect of the property. It is further held that the terms of the section indicate that they cannot be conditions precedent to the enforcement of the transferor’s right and they are only conditions precedent to the interposition of the bar against the transferor and consequently conditions precedent to the accrual of the transferee’s right to protect his possession. 14 wherein was 1949 see Online eal 197 ' ^ 1939 see Online PO 63 27 BSB, J C.R.P.No.l825 of2022 (ii) In Maneklal Mansukhbhai Vs. Hormusji Jamshedji Ginwalla and sons^®, the scope of section 53A of the T.P. Act was observed as follows: “21. The section is a partial importation in the statute law of India of the English doctrine of part performance. It furnishes a statutory defence to a person who has no registered title deed in his favour to maintain his possession if he can prove a written and signed contract in his favour and some action on his part in part-performance of that contract. ... It has further to be held established that the transferee took possession of the property or did any acts in furtherance of the contract. It may be mentioned that in cases of lease the legislature has recognized that the equity of part-performance is an active equity as in English law and is sufficient to support an independent action by the plaintiff. (Vide S.27-A of the Specific Relief Act). This section however applies to contracts executed after 1st April, 1930, and has no application in the present case; but there can be no mariner of doubt that the defence under section 53- A is available to a person who has an agreement of lease in his favour though no lease has been executed and registered.” This decision was followed by the Supreme Court in UOI Vs. K C Sharma, (supra). (iii) In Muralidhar Kulthia Vs. Sm. Tara Dye^^, the High Court of Calcutta held as follows: 16 1950 see 83 : 1950 See Online Se 8 17 1950 see Online Oal 91 = AIR 1953 Oal 349 28 “7. The document purports to be a lease for five years. Under Section 107, T. P. Act", such lease could be made only by a registered document. As the document is not duly registered, there is no effective lease. Under section 17 of the Registration Act, such lease must be registered and in the absence of registration under section 49, the lease cannot affect the premises and cannot be received as evidence of any transaction affecting the property. The lease, however, is admissible in evidence of part performance of a contract for the purpose of section 53A, T. P. Act, and also as evidence of any collateral transaction and not required to be effected by registered instrument, e. g. to show the nature and character of possession of the defendant Deshpande Vs. Ranganath Dhondo Deshpande, I.L.R. (1942) Bom 595. - J.C. Gaistaun Vs. Prafulla Kumar, 36 Cal. W. N. 583. ...” “10. If there is possession under a void or invalid lease, there is a tenancy at will. This situation generally arose in England when the lease was oral and offended against the statute of frauds. The law implied that, in the first instance, there was a tenancy at will and that it was converted by payment of rent into a tenancy from year to year or from month to month as the case might be. The law is the same in India. Mulla's Transfer of Property Act, 3rd Edn. pp. 630, 631, 633, 658. - Darbarilal Vs. Ranigunge Coal Association, Ltd, [AIR 1944 Pat 30] - Ramchandra Vs. Syameswari, [42 Cal L. J. 71], In England Courts of Equity went further and said that the lease though void as a lease was valid as a contract and could be enforced by specific performance and also said that if there was part performance of the lease the defence of the statute of frauds was excluded. In - Vishwanath Haibatrao 29 BSB, J C.R.P.No.1825 of 2022 India there is no such equitable doctrine yet under Section 53A, T. P. Act., the lease may be enforced as a contract to the extent and in the manner provided in that section. The implied monthly tenancy is there fore subject to the modification if any made by that section. 11. In this case there is an unregistered lease followed by payment and acceptance of rent. By implication of law there is therefore a tenancy from month to month. The terms of the lease may also be enforced under Section 53A in the manner and to the extent provided by that section.” In this case, the decision of the Division Bench of the same High Court in Ram Pratap case (supra) was followed as follows: “16. The plaintiff must succeed on another ground also. In -- Ram Pratap Vs. National Petroleum' Co. Ltd., [54 Cal. W. N. 58], there was an unregistered lease for a term of five years for manufacturing purposes. The lessee was let into occupation and paid rent which was accepted. On the expiry of the period of the lease, the lessor instituted a suit for ejectment. The defence was that the letting for manufacturing purposes followed by payment and acceptance of rent, must be deemed to be a lease from year to year terminable by six months notice to quit and that as no such notice to quit was served, the plaintiff had no cause of action. 17. P.N. Mitra and R.C. Mitter, JJ., held that; (1) Section 53A, Transfer of Property Act, by plain implication enables the transferor to enforce a right expressly provided by the terms of the contract; 30 BSB, J C.R.P.No.l825 of 2022 (2) The fulfilment of all the conditions mentioned in the section is not a condition precedent to ine enforcement of such right; (3) The unregistered document is admissible in evidence in a suit to enforce this right of the transferor. 18. The Court also observed that there was no doubt that in that case if the transferor wants to enforce the right provided by the contract he must have put the transferee in possession in part performance of the contract. I have no doubt that the same result would follow if the transferee being already in possession continues in possession in part performance of the contract and does some act in furtherance of the contract.” In Jahangir Begum Vs. Gulam Ali Ahmed^®, it was held as (iv) follows: “11. To invoke the doctrine of part performance, the transferee must take possession of the property and if he be already in possession and continues as such, he must, in furtherance of the contract, do some act which must be such as to constitute an act of part performance. The acts of part performance, if they preceded the contract, couldn’t be evidence of part performance. ...” (V) In Sardar Govindrao Mahadik and another Vs. Devi Sahal and others^®, the Supreme Court held as follows: “10. In order to qualify for the protection conferred by the equitable doctrine of part performance as enacted in section 53A, the following facts will have to be established: 18 1954 see Online Hyd 129 (1982) 1 Supreme eourt eases 237 19 31 BSB, J C.R.P.No.l825 of2022 (1) That the transferor has contracted to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty; (2) That the transferee has in part-performance of the contract taken possession of the property or any part thereof. Or the transferee, being already in possession, continues in possession in part performance of the contract; (3) That the transferee has done some act in furtherance of the contract: and (4) That the transferee has already or is willing to perform his part of the contract." (see Nathulal Vs. Phool Chand, AIR 1970 SC 546). ...” “13. ...The departure under our law is that when giving its statutory form in section 53A of the Act the existence of a written contract has been made sine qua non and simultaneously the statute also insists upon proof of some act having been done in furtherance of the contract. The act relied upon as evidencing part performance must be of such nature and character that its existence would establish the contract and its implantation. Each and every act subsequent to contract by itself may not be sufficient to establish part performance. The act must be of such a character as being one unequivocally referable to the contract and having been per. formed in performance of the contract. In Lady Thynne Vs. Earl of Glengall, 2 HL Cases 158, it was observed that: "part performance to take the case out of the Statute of Frauds, always supposes a completed agreement. There can be no part performance where there is no completed agreement in existence. It must be obligatory, and what is done must be under the terms of the agreement and by force of the 32 BSB, J C.R.P.No.1825 of 2022 agreement." This approach would necessitate that the act relied upon as being in the part-performance of the contract was such as by its own force would show the very same contract as is alleged by the person seeking the protection of performance.” part- “17. ... Section 53A postulates a written contract from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. ... and it must be shown that the act has been done in furtherance of the contract, i.e., subsequent to the contract or at best simultaneously with the contract but unequivocally attributable or referable to the contract. It must follow that the acts anterior to previous to the agreement cannot be presumed to be done in pursuance of it and cannot, therefore, be considered as act of part performance.(see Whitbread Vs. Brockhurst28 ER 1205 (LC)...” 18. ... If a written contract is a sine qua non for seeking coverage of umbrella of the equitable doctrine of part performance, any act preceding the contract could conceivably never be in furtherance of that contract which was yet to materialise. Negotiations for a contract and a concluded contract stand apart from each other. Anything negotiating stage cannot be claimed as a contract unless the contract is concluded between the parties, i.e., the parties are ad idem. ...” at the 39. Induction into possession of an immovable property for the first time subsequent to the contract touching the property be decisive of the plea of part performance. Mere may possession ceases to be of assistance when, as in this case, the person claiming benefit of part performance is already in possession, prior to the contract and continues to retain possession. ...” 33 BSBJ C.R.P.No.1825 of 2022 (vi) in Somani Marketing Pvt. Ltd. & another Vs. Subhash C. Raswant^°, a suit for specific performance was filed basing on a draft agreement of lease for further renewal. The tenant sent a draft agreement to which the owner made certain corrections and sent to the tenant to resend it for resubmission for final approval. The counsel for the plaintiff fairly conceded that the suit could not lie with the aid of section 53A of the T.P. Act, but strongly relies on the document sent by the owner with corrections made as a concluded contract. But, the High Court of Delhi held that it shows that the proposal for creating a contract of tenancy was still in the stage of negotiations and these negotiations had not formed a binding agreement of tenancy between the parties and that the proviso to section 49 of the Registration Act (before its amendment in 2001 by deleting use of unregistered instrument for the purpose of part performance under section 53A of the T.P. Act) was not applicable and consequently the suit relief of specific performance could not be granted. (vii) In Rickmers Verwaltung GMBH Vs. tndian Oil Corporation Ltd.^\ the Supreme Court held as follows: “13. In this connection the cardinal principle to remember is that it is the duty of the court to construe correspondence with a view to arrive at a conclusion whether there was any meeting of mind between the parties, which could create a binding contract between them but the Court is not empowered to create a contract for the parties by going outside the clear language used in the correspondence, except insofar as there are some appropriate implications of law to be drawn. Unless from the correspondence it can unequivocally and clearly emerge that 20 (1998) 47 DRJ 427 (1999) 1 see 1 = AIR 1999 Se 504 21 34 BSB, J C.R.P.No.l825 of2022 the parties were ad idem from that material to infer whether the intention as expressed in the correspondence was to bring into existence a mutually binding contract. The intention of the parties is to be gathered only from the expressions used in the correspondence and the rneaning it conveys and in case it shows that there had been meeting of mind between the parties and they had actually reached an agreement, upon all material terms, then and then alone can it be said that a binding contract was capable of being spelt out from the correspondence.” (viii) In T.S. Bellieraj Vs. Vinodhini Krishnakumar and others High Court of Madras held the essential conditions and object of section 53-A of the T.P. Act as follows; 22 , the 17. The doctrine of part performance embodied in this Section is an eguitable doctrine. The object of this Section is to prevent a transferor or his successor-in-interest from taking any advantage on account of the non-registration of the documents, provided the transferee has performed his part of the contract and in pursuance thereof has taken possession of some immovable property. The essentials of this Section is (i) a contract to transfer of immovable property (ii) the contract must be for consideration (iii) it must be in writing signed by him or on behalf of the transferor (iv) the terms can be ascertained from the writing (v) the transferee has taken possession or is already in possession of the property (vi) he has done some act in furtherance of the contract and (vii) has performed or is willing to perform his part of the contract. This Section does not confer (2004) 2CTC510 35 BSB, J C.R.P.No.l825of 2022 any title on the transferee who takes possession in pursuance of a written, but unregistered contract. ...” In so far as application of section 53A of the T.P. Act is concerned, since the unregistered lease deed is for a limited period only and the period was completed as on 31.07.2015, irrespective of its consideration in evidence for want of required stamp duty as aforesaid, now it cannot be used for protection against dispossession and after 31.07.2015, since there is no signed concluded contract, section 53A of the T.P. Act cannot be invoked. 25. Since, the relief in the application is for not only to vacate the premises but also to handover the structures thereon, firstly it is opposed by the lessee on the ground that the property as described in the plaint schedule is absolutely different from the property on ground now with reference to boundaries and does not tally consequent to which execution of the decree, even if passed, becomes impossible and the plaintiff is not entitled to the relief; and secondly, on the ground that the condition to handover structures is part of an unregistered lease deed which cannot be admitted in evidence to enforce the terms therein and therefore, such a term cannot be enforced, in fact, in the counter, no such grounds were raised. But, these grounds were taken in the written statement. Therefore, since judgment is sought on admissions in the written statement, it is necessary to examine whether it is possible to pass judgment. 26. In the written statement, the lessee pleaded that the description of property in the plaint schedule does not tally with the presently existing property on ground since boundaries shown on east and south are municipal road and on north is bank, other building and land of the lessor and therefore, for want of measurements, it is difficult to find out 27. 36 BSB,J C.R.P.No.1825 of 2022 the exact extent of land on south and north and further on the eastern side where the site between the boundary wall and the road occupied by the dwellers was got vacated by the lessee with its efforts (so the description of the eastern boundary is wrong) and that there is a great variance between the demised property delivered to the lessee and the plaint schedule, and ultimately, the relief cannot be passed as it is impossible to execute the decree even if passed. 28. 28. Insofar as the lessor is concerned, it is argued that there is no dispute of identity of the property as the lessee entered into the agreement of lease knowing the specific property and that such dubious attempts to thwart the relief should not be entertained, else the lessees would get unfair advantage and the lessor would never be able to recover the property and that the property shall be delivered as it was taken. He referred to the decision of the High Court of Delhi in Abhishek Gupta Vs. Shashi Kumar Shukla 23 wherein a tenant who is an advocate by profession has attempted to resist eviction from the rented building resorting to all means of procedures and technicalities, it was held as follows: “33. ... Thus, the mere error in the description of the property in the rent agreement, when there is no dispute as to the identity of the property, cannot lead to the admission by the defendant being ignored by the Court. The admission is clear and unambiguous insofar as the execution of the rent agreement has not been denied by the defendant.” He further referred to a case decided by the Supreme Court in Ramdas Bansal (dead) through LR Vs. Kharag Singh Baid and 23 2021 see OnLine Del 4290 = (2021) 283 DLT 183 r 37 BSB, J C.R.P.No.l825 of2022 others^'*, wherein since the description of the property in the lease deed was not tallied with the description of suit property, while seeking eviction, rectification of the mis-description of the property in the lease deed, if necessary, was also sought. In spite of the contention that the relief of rectification was opposed as barred by limitation, the single judge and the Division Bench of the High Court allowed the prayer holding that said issue was not of much consequence since as per the written statement, the lessee was fully aware at the time of granting of lease that the property was as now described in the suit and the Supreme Court upheld that view as there was no doubt about the identity of the suit property in which the building was situated. 29. As in the above-referred cases, the lessee having taken the demised premises under a written documents knowing well what is the demised property cannot now turn around to take such plea as contended. Just because efforts were made in securing the possession of the land occupied by the dwellers, a lessee cannot claim that it is not the property of the lessor or else how could the lessee get possession from the dwellers. When property could be identified when the demised property was taken though there were no measurements given in the document, it is now incorrect to contend as aforesaid. 30. Insofar as the structures are concerned, since it was contended by the lessee that the relief of delivery of the building cannot be granted when terms of the lease deed cannot be enforced for want of registration, it was initially contended that it was only the land, but not the building, that was given on lease and therefore the objection on the ground of lack of registration cannot be raised. In the event of Court not looking into the terms in the lease deed for want of registration, as an alternative, a memo was filed here before this Court on 02.07.2024 that 24 (2012) 2 see 548 38 BSB, j C.R.P.No.l825of 2022 the plaintiff is not pressing the relief to deliver the structures and that the plaintiff may be delivered possession of vacant site only in the condition it was taken at the time of commencement of the lease on 31.07.1990 by exercising the option given under section 108 (h) of the T.P. Act. He further submitted that it is the lessee who is required to remove the building and hand over the land after expiry or termination of the lease, but the Courts held that, on the ground of equity, an option has been given to the lessor to take the land without building or to take the land with building by paying compensation to lessee for the value of the material after demolition. 31. The learned counsel for the lessee contended that unless the relief is amended, it cannot be permitted and that the lessee is entitled to compensation for the structure, which can be ascertained in the trial only. The learned senior counsel for the lessor argued that though the lease deed enabled the lessee to take compensation for the building, it cannot be enforced for the same reason of non-registration and that the option to take land only or with structures is available to the lessor only and thus the lessor opted to take back the land only by filing and therefore there is no need to conduct trial. a memo “108. Rights and liabilities of lessor and lessee.— In the absence of a contract or local usage to the contrary, the lessor and the lessee of immoveable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased:— (A) Rights and Liabilities of the Lessor -... (B) Rights and Liabilities of the Lessee - ... 39 BSB, J C.R.P.No.l825 of2022 (h) the lessee may even after the determination of the lease remove, at any time whilst he is in possession of the property leased but not afterwards all things which he has attached to the earth; provided he leaves the property in the state in which he received it;” Here it is also pertinent to mention section 51 of the T.P. Act - “51. Improvements made by bona fide holders under defective titles.— When the transferee of immovable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he subsequently evicted there from by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell interest in the property to the transferee at the then market value thereof, irrespective of the value of such improvement. The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction. When, under the circumstances aforesaid, the transferee has planted or sown on the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free ingress and egress to gather and carry them.” Obviously, both differently worded provisions operate in different fields and do not provide the same kind of remedy. The learned senior counsel for the lessor referred several decisions in support of his submissions. They are - 32. 40 BSB,j C.R.P.No.l825 of 2022 a) In Re Thakoor Chunder Paramanick and ors^®, it was held by the five judge Bench of High Court of Calcutta as follows; “5. We think it clear that, according to the usages and customs of the country, buildings and other such improvements made land do not by the mere accident of their attachment to the soil become the property of the owner of the soil; and we think it should be laid down as a general rule that, if he who makes the improvement is not a mere trespasser, but is in possession under any bona fide title or claim of title, he is entitled either to remove the materials, restoring the land to the estate in which it was before the improvement was made, or to obtain compensation for the value of the building if it is allowed to remain for the benefit of the owner of the Soil, the option of taking the building, or allowing the removal of the material remaining with the owner of the land in those cases in which the building is not taken down by the builder during the continuance of any estate he may possess. With these observations on , we remand the case to the Division Court, which will pass such orders as may be necessary on the review.” b) The above decision was followed in the subsequent decision in Ismail Khan Mahomed Vs. Joygoon Bibee 26 and held that section 51 of the T.P.Act does not apply to a tenant and that it is section 108(h) of the T.P.Act which governs the case of a tenant. The larger Bench decision (supra) was followed in the other decision in Ismai Kani Rowthan Vs. Nazarali Sahib & Another^^, by the Division Bench of the High Court of Madras and held, in the light of 25 MANU /WB/0168/1866 (1900) ILR 27 Cal 570 ILR(1904) 27 Mad 211 26 27 41 BSB, J C.R.P.No.l825 of 2022 the facts of that case, that the lease was for a definite term of 20 ' . i. years with permission to build on the land so there can be no pretence that the lessee did or could believe in good faitb that he had a permanent right in the property or that any conduct of the lessor, subsequent to the lease, has created an equitable estoppel against his evicting his tenant without compensation. In Narayan Das Khettry Vs. Jatindra Nath Roy Chowdhury Council also considered the decision of the larger Bench (supra). 28 the Privy c) In Darbari Lai Mudi Vs. Raneeganj Coal Association Ltd^®, the High Court of Patna followed the decisions in Ismail Khan (supra) and by larger Bench in Ismai Khan (supra) and further by following the principle that there can be no estoppel against a statue, held that the oral grant in that case had not operate to confer on the defendants more than a monthly tenancy and that the defendants cannot claim tenancy by estoppel as they had not acted with due diligence to have a registered document. Following this decision in a subsequent case in Hiralal Rewani and others Vs. Bastocolla Colliery Co. Ltd & another^”, the same High Court rejected the claim of the lessee for compensation for structures under section 108 (h) of the T.P.Act holding that equitable principle for compensation is not applicable where the statue governs the same. In Bastacolla Colliery Co. Ltd. Vs. Bandhu Beldar and another after considering sections 51 and 108(h) of the T.P.Act and the law prior thereto, including the decision in Thakur case (supra), rejected the application of estoppel for payment of compensation to the 31 28 AIR 1927 PC 135 AIR 1944 Pat 30 AIR 1957 Pat 331 AIR 1960 Pat 344 (FB) 29 30 42 BSB, J C.R.P,No.l825 of 2022 lessee for the structures and held the lessee was not entitled to compensation. d) The decision in Bhatia Cooperative Housing Society Ltd Vs. rendered by the Supreme Court was referred regarding the proposition that section 108 of the T.P. Act is subject to the agreement between lessor and lessee. And to the same effect is the decision in Dr.K.A.Dhairyawan & others Vs. J.R.Thakur & which was followed by the Supreme Court in Ratan Lai Jain and others Vs. Lima Shankar Vyas and others^'*. The decision in Basant Lai (Dead) by LRs & Others Vs. State of Uttar also to the same effect that the right of the lessee is subject to contract to the contrary. 32 D.C.Patel 33 others 35 Pradesh In the light of all the above decisions, it is clear that the lessor has legally opted for recovery of the vacant site / land as was let out and that the right of the lessee for the structures made in the site is as under section 108(h) of the T.P. Act. 33. 34 (a) The learned senior counsel for the lessor further argued that though the relief sought is in favour of plaintiff, still Court can mould the relief in favour of all the parties under Order VII, rule 7 CPC, even if such relief is not sought as held in Devshi Harpal Vs. Bhikamchand Ramchand and others^®. He further submitted that if facts admitted by the defendant are sufficient to grant an alternate relief which is not sought and inconsistent with the relief sought, the Court can grant such relief even without (b) 32 (1952) 2 see 355 AIR 1958 Se 789 (2002) 2 see 656 (1980) 4 see 430 AIR't9.27 Bom 125 (DB) 33 34 35 36 r 43 BSBJ C.R.P.No.1825 of 2022 insisting for adducing any evidence or where the plaintiff sought larger relief entitled to a lesser one as held by the Supreme Court in Srinivas Ram Kumar Firm Vs. Mahabir Prasad and others^^ and by the High Court of Orissa in Managobinda and others Vs. Brajabandhu Misra^®. (c) He further referred to the decision that when a relief, either interlocutory or final, is consistent with and flows from very case of the opposite party or what must be held necessary consistent with the of the opposite party and does not take the opposite party by surprise. Court can mould the relief accordingly as held in M/s. Patil Exhibitors case (P) Ltd. Vs. Corporation of the City of Bangalore®®. (d) It is his further submission that in a suit for declaration of title and confirmation of possession, though relief of possession Court can order recovery of possession as held in Jagabandhu Naik and another Vs. Gouri Bandha and others^®. was not sought (e) Further, it was argued that alternative relief under Order VII 7 C.P.C., though not sought can be granted when no prejudice would be caused to the other side party as held in Khali Panigrahi Vs. Kamala Devi rule :41 or if Court thought it to be just and proper to grant it as held in Arakhita Swain Vs. Kandhuni Swain"®, or by exercising inherent power when it appears legitimate and proper as held in Managobinda and others Vs. Brajabandhu Misra"®. 35. The above propositions are undisputed. Though no relief can be granted on a memo, it is an accepted practice to file a memo to 37 AIR 1951 SC 177 AIR 1986 Ori 281 AIR 1986 Kant 194 AIR 1985 Ori 126 AIR 1967 Ori 100 (DB) AIR 1983 Ori 199 AIR 1986 Ori 281 38 39 40 41 42 43 44 BSB,; C.R.P.No.1825 of 2022 withdraw any proceedings or ‘not press’ any relief and when such a memo is filed, the proceedings are closed or dismissed and if it is in relation to any relief, such a relief is also given up and recorded by the Courts. Therefore, it cannot be a valid ground to oppose the petitioner / plaintiff from giving up such a claim. Then, remains to grant modified relief of vacant possession of site taken on rent, instead of the said site with the building thereon. The trial court observed that all the contentious issues need a trial. Such an observation is not appropriate in view of the admitted facts which are sufficient to pass a decree under Order XII, rule 6 CPC as discussed above. The defense of extension of lease by another period of 25 years or in perpetuity is against the legal consequences of termination of lease out of the admitted facts which resulted in termination of lease and so it is inconsistent with the plea of perpetual or extended lease. Moreover, there cannot be perpetual lease for another 25 years without any registered lease deed merely because of permanent structures made in terms of initial lease as any lease, in the absence of a registered deed is only from month to month in law and the position cannot be altered by leading any amount of evidence in that regard during the trial. The lessee has taken risk of non-registration of the lease deed. All legal consequences flow from it. So, such plea to resist eviction need not be entertained till trial is held. 36. 37. As already noted, by issuing notice determining the lease and declining to accept the request of the lessee to renew the lease, the lessor is expressive in not accepting renewal of lease. Therefore, the lease finally came to an end by 30.06.2019. 38. In the result, the revision petition is allowed by setting aside the order dated 15.02.2022 in I.A.No.456 of 2019 in O.S.No.1123 of 2019 F 45 BSB, J C.R.P.No.l825 of 2022 on the file of the Court of II Additional Junior Civil Judge, Vijayawada and allowing the same. Consequently, the suit is decreed with costs giving time for six months from the date of this order to vacate the suit schedule vacant site and handover the vacant possession of the same to the plaintiff. The trial Court shall draft the decree accordingly. Further, the trial Court shall record filing of the memo dated 02.07.2024, by the plaintiff, before this Court, that the plaintiff is not pressing the relief to deliver the structures and that the plaintiff may be delivered possession of vacant site only in the condition it was taken at the time of commencement of the lease on 31.07.1990, in the relevant records and files. There shall be no order as to costs. Pending miscellaneous petitions, if any, shall stand closed. Sd/- U SRIDEVI ASSISTANT REGISTRAR //TRUE COPY// SECTION OFFICER To, 1. Thd lind Additional Civil Judge(Junior Division), Vijayawada, Krishna District. 2. One CC to Sri. B V Krishna Rao, Advocate [OPUC] 3. One CC to Sri. T V P Sai Vihari, Advocate [OPUC] 4. Three CD Copies vna i HIGH COURT DATED:21/02/2025 ORDER CRP.No.1825 of 2022 's f^JUN® a; Current iieciion . ^^gSPATCHCqjy ALLOWING THE CIVIL REVISION PETITION WITHOUT COSTS