# Pawan Kumar Kothiwal & Ors. Revisionists v. State of U.P. & Ors

- **Citation:** (2025) 1 ILRA 327
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-22
- **Case number:** Civil Revision No. 524 of 2011
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pawan-kumar-kothiwal-ors-revisionists-v-state-of-u-p-ors-54885
- **Pages:** 12

## Headnote

A. Civil Law - Transfer of Property Act -
Unregistered Lease - Section 107 of T.P.A.
provides that a lease of immoveable
property for any term exceeding one year
can
be
made
only
by
a registered
instrument.
All
other
leases
of
immoveable property may be made either
by a registered instrument or by oral
agreement accompanied by delivery of
possession. Section 106 of the T.P.A.
states that in the absence of a contract, a
lease
of
immoveable
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 immoveable 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 days' notice. No lease rights can
flow in respect of immoveable property
beyond
the
period
prescribed
under
Section 107 of the Transfer of Property
Act from an unregistered instrument/
document. (Para 16)
B. Civil Law - Registration Act, 1908 -
Registration
of
agreement
entered
between
the
private
party
and
the
Government in respect of private land -
Section 90(1)(d), Registration Act, 1908
provides: that Nothing contained in the
Registration Act shall be deemed to
require, or to have at any time required,
the registration of sanads, inam, titledeeds and other documents purporting to
be or to evidence grants or assignments
by Government of land or of any interest
in
land.
Section
90(1)(d)
of
the
Registration Act stipulates only such
certificates and documents which are
issued by the Government creating rights
in respect of Government land or any
other rights in respect of such lands.
Section 90(1)(d) cannot be interpreted to
mean any agreement entered between the
private party and the Government in
respect of private land. Any right in
respect of immoveable property which is
not creating or conferring any assignment
or right as contemplated under Section
90(1)(d), is required to be compulsorily
registered under the Registration Act.
(Para 18)
C. Plaintiff's eviction suit. There was no
agreement in writing creating tenancy
rights in favour of the respondents. Letter
issued on behalf of Governor stipulated
328 INDIAN LAW REPORTS ALLAHABAD SERIES
that
tenancy
was
till
30.06.2009.
Plaintiff's case was that it was a fixed
term tenancy starting from 01.07.1995 to
end on 30.06.2009 and, therefore, the
respondents were liable to be evicted
upon expiry of the term of tenancy and in
the event of their failure to vacate the
premises, the tenancy was liable to be
determined by issuance of notice under
Section 106 of the Transfer of Property
Act.
Respondent
presented
an
unregistered agreement before the court
to demonstrate that there was not fixed
term tenancy. Document on non-judicial
stamp was filed by respondent and
claimed to have been signed by the
landlord
creating
tenancy
w.e.f.
01.07.1994.
However,
it
referred
to
payment of rent only till 30.05.2005. That
document
contained
Clause
6
which
prescribed that after expiry of the period
new lease would be executed with further
25% enhancement of rent. No such
agreement
was
re-entered.
Question
arose as to which document is to be read
to interpret tenancy rights. Trial Court
held that in view of agreement relied upon
by the respondents there appeared to be
no fixed term tenancy and, hence, it
amounted to tenancy in perpetuity and
plaintiff having continued the respondents
in tenancy by their act and conduct, the
benefit under Section 116 of the Transfer
of Property Act of holding over was liable
to be extended to the tenant-respondent.
Issue: Whether an unregistered document
presented by the respondent can be read
into to draw an inference that there was a
tenancy in perpetuity and therefore, could
not have been determined by issuance of
a notice under Section 106 of the Transfer
of Property Act, 1882? Held: Looking to
the relevant clause of the document of
lease as filed by the resp

## Text

_Characters 0–39,952 of 41,350. This is a partial read: ask again with offset=39952 for what follows._

1 All. Pawan Kumar Kothiwal & Ors. Vs. State of U.P. & Ors.
327
cryptic and erroneous which deserves to be
quashed.

11.
Accordingly,
the
impugned
summoning order dated 21.6.2024, passed
in Complaint Case No. 10707 of 2024,
under Section 23 of Pre-conception and
Pre-natal
Diagnostic
Techniques
(Prohibition of Sex Selection) Act, 1994,
P.S. Balua, District Chandauli, is hereby set
aside.

12. The court below is directed to pass
a fresh order in accordance with law.

13. With the above observation,
present application is allowed.
----------
(2025) 1 ILRA 327
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.01.2025

BEFORE

THE HON'BLE AJIT KUMAR, J.

Civil Revision No. 524 of 2011

Pawan Kumar Kothiwal & Ors.
 ...Revisionists
Versus
State of U.P. & Ors. ...Opposite Parties

Counsel for the Revisionists:
Archit Mehrotra

Counsel for the Opposite Parties:
C.S.C.
A. Civil Law - Transfer of Property Act -
Unregistered Lease - Section 107 of T.P.A.
provides that a lease of immoveable
property for any term exceeding one year
can
be
made
only
by
a registered
instrument.
All
other
leases
of
immoveable property may be made either
by a registered instrument or by oral
agreement accompanied by delivery of
possession. Section 106 of the T.P.A.
states that in the absence of a contract, a
lease
of
immoveable
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 immoveable 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 days' notice. No lease rights can
flow in respect of immoveable property
beyond
the
period
prescribed
under
Section 107 of the Transfer of Property
Act from an unregistered instrument/
document. (Para 16)
B. Civil Law - Registration Act, 1908 -
Registration
of
agreement
entered
between
the
private
party
and
the
Government in respect of private land -
Section 90(1)(d), Registration Act, 1908
provides: that Nothing contained in the
Registration Act shall be deemed to
require, or to have at any time required,
the registration of sanads, inam, titledeeds and other documents purporting to
be or to evidence grants or assignments
by Government of land or of any interest
in
land.
Section
90(1)(d)
of
the
Registration Act stipulates only such
certificates and documents which are
issued by the Government creating rights
in respect of Government land or any
other rights in respect of such lands.
Section 90(1)(d) cannot be interpreted to
mean any agreement entered between the
private party and the Government in
respect of private land. Any right in
respect of immoveable property which is
not creating or conferring any assignment
or right as contemplated under Section
90(1)(d), is required to be compulsorily
registered under the Registration Act.
(Para 18)
C. Plaintiff's eviction suit. There was no
agreement in writing creating tenancy
rights in favour of the respondents. Letter
issued on behalf of Governor stipulated
328 INDIAN LAW REPORTS ALLAHABAD SERIES
that
tenancy
was
till
30.06.2009.
Plaintiff's case was that it was a fixed
term tenancy starting from 01.07.1995 to
end on 30.06.2009 and, therefore, the
respondents were liable to be evicted
upon expiry of the term of tenancy and in
the event of their failure to vacate the
premises, the tenancy was liable to be
determined by issuance of notice under
Section 106 of the Transfer of Property
Act.
Respondent
presented
an
unregistered agreement before the court
to demonstrate that there was not fixed
term tenancy. Document on non-judicial
stamp was filed by respondent and
claimed to have been signed by the
landlord
creating
tenancy
w.e.f.
01.07.1994.
However,
it
referred
to
payment of rent only till 30.05.2005. That
document
contained
Clause
6
which
prescribed that after expiry of the period
new lease would be executed with further
25% enhancement of rent. No such
agreement
was
re-entered.
Question
arose as to which document is to be read
to interpret tenancy rights. Trial Court
held that in view of agreement relied upon
by the respondents there appeared to be
no fixed term tenancy and, hence, it
amounted to tenancy in perpetuity and
plaintiff having continued the respondents
in tenancy by their act and conduct, the
benefit under Section 116 of the Transfer
of Property Act of holding over was liable
to be extended to the tenant-respondent.
Issue: Whether an unregistered document
presented by the respondent can be read
into to draw an inference that there was a
tenancy in perpetuity and therefore, could
not have been determined by issuance of
a notice under Section 106 of the Transfer
of Property Act, 1882? Held: Looking to
the relevant clause of the document of
lease as filed by the respondent which
prescribed
for
period
running
from
01.07.1994
till
May,
2005,
it
was
necessarily required to be registered as
per Section 107 of the Transfer of
Property Act. Since that document was
not registered, it could not create lease
rights beyond a period of twelve months.
As the lease was neither for agricultural
purposes, nor for manufacturing purposes,
therefore, lease would be taken as the one
on month to month basis. As the lease in
question would have been on month to
month basis, no justification for extending
benefit of Section 116 to the respondent.
The notice issued by the landlord-plaintiff
determining lease on 30.07.2009 was
valid. Findings returned by the court
below that there was a lease in perpetuity
was
based
upon
misreading
of
the
document as well as interpretation of
relevant provisions of law and cannot be
sustained
in
law.
SCC
Suit
decreed
directing the respondents to vacate the
premises in question. (Para 17, 18, 19)
Allowed. (E-5)
List of Cases cited:
1. Sevoke Properties Ltd. Vs West Bengal State
Electricity Distribution Comp. Ltd., (2020) 11
SCC 782

2. Park Street Properties Pvt. Ltd. Vs Dipak
Kumar Singh & anr., (2016) 9 SCC 268

3. Rajeev Kumar Vs St. of U.P. through
Secretary Finance and Revenue Department
U.P. at Lucknow & ors., 2016 (165) AIC 939 (All
HC)

4. U.O.I. & ors. Vs Sudarshan Lal Talwar, 2022
ALL LJ 1623

5. Anish Ahmad Vs Special/Additional District
Judge, Saharanpur & ors., 1997 SCC OnLine All
303

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Shri Archit Mehrotra, learned
Advocate appearing for revision-applicants
and Shri O.P. Singh Sikarwar, learned
Standing Counsel appearing for State of
U.P. and Regional Food Controller, Civil
Lines, Moradabad, the tenant respondents.

2. The sole issue that arises for
consideration before the Court is as to
1 All. Pawan Kumar Kothiwal & Ors. Vs. State of U.P. & Ors.
329
whether
an
unregistered
document
presented by the respondent can be read
into to draw an inference that there was a
tenancy in perpetuity and therefore, could
not have been determined by issuance of a
notice under Section 106 of the Transfer of
Property Act, 1882.

3. In the instant case revisionapplicant/ plaintiff has been non-suited in
the eviction suit only for the reason that
respondent
presented
an
unregistered
agreement before the court to demonstrate
that there was not fixed term tenancy
contrary to the stand taken by plaintiff that
there was a fixed term tenancy to expire on
30.06.2009 and, therefore, the respondents
were liable to be evicted upon expiry of the
term of tenancy and in the event of their
failure to vacate the premises, the tenancy
was liable to be determined by issuance of
notice under Section 106 of the Transfer of
Property Act. The trial court while
dislodging the stand of the plaintiff to
determine the tenancy by issuing notice
under Section 106 of the Transfer of
Property Act held that in view of agreement
relied upon by the respondents there appear
to be no fixed term tenancy and, hence, it
amounted to tenancy in perpetuity and
plaintiff/
revision-applicant
having
continued, the respondents in tenancy by
their act and conduct, the benefit under
Section 116 of the Transfer of Property Act
of holding over was liable to be extended to
the tenant respondent.

4. The submission advanced by
learned counsel appearing for revisionapplicant for assailing the judgment is that
no unregistered agreement in respect of
immovable property can create lease rights
beyond prescribed period of 12 months as
per Section 107 of the Transfer of Property
Act and Section 17 of the Registration Act
in
such
circumstances,
therefore,
an
unregistered agreement would only mean to
create tenancy right on month to month
basis determinable with 30 days notice in
advance as it then stood on the statute
vide provision 106 of the Transfer of
Property Act, 1882. Thus, it is submitted
that the court below was not justified in
holding the lease to be a valid agreement
creating tenancy rights in perpetuity and
then conferring benefit of Section 116 of
the Transfer of Property Act in favour of
the tenant respondents for the act and
conduct of plaintiff in continuing them in
tenancy beyond the period prescribed as
per their own document of five years of
tenancy which was not acted upon.
According to learned counsel appearing for
revision applicant, revision applicant would
be tenant in sufferance upon issuance of
notice under Section 106 and therefore,
would not be entitled to benefit under
Section 116 of the Transfer of Property
Act.

5. Learned counsel appearing for
revision-applicant has relied upon the
judgment of Supreme Court in the case of
Sevoke Properties Limited v. West Bengal
State Electricity Distribution Company
Limited (2020) 11 Supreme Court Cases
782 and placed before the Court paragraphs
12 and 13 of the judgment that run as
under:

"12. The essence of the dispute in
the present case is as to whether a notice of
termination
under
Section
106
was
necessary. In the judgment of this Court in
Satish Chand Makhan, the father of the
plaintiff had leased open land to the
defendant for a period of five years under a
registered deed of lease. After the expiry of
the initial term, there was a draft
agreement for renewal for a further period
330 INDIAN LAW REPORTS ALLAHABAD SERIES
of nine years, which, however, was not
registered under Section 17 (1) (d) of the
Registration Act, 1908. The plaintiff served
a notice for the determination of the
tenancy on the ground of forfeiture under
Section 111 (g) and brought a suit for
ejectment. The High Court held that the
lease had been determined by efflux of time
under Section 111 (a) upon the expiry of
the term of nine years and hence, no notice
under Section 106 was required for
determination
of
the
lease.
While
determining
the
correctness
of
the
judgment of the High Court, this Court
observed
that
"the
defendants
have
nowhere admitted that the lease was for a
specific term of nine years". On the
contrary, the defendants had pleaded that
they were tenants holding over under
Section 116 of the TP Act. This Court held
that the unregistered draft lease agreement
was inadmissible in evidence under Section
49 of the Registration Act except for a
collateral purpose of providing the nature
and character of the possession of the
defendants. the terms of the lease did not
constitute
a
collateral
purpose.
Consequently, the unregistered draft lease
was held to be inadmissible to create a
valid lease for a renewed term of nine
years. In this background, this Court held
that the defendants were tenants holding
over under Section 116 in which event it
was necessary for the plaintiff to serve a
notice under Section 106. In the absence of
such a notice, the suit, it was held would
not be maintainable.

13. Mr. Sundaram has sought to
distinguish this decision, since in that case
this Court found that the defendant was a
tenant holding over within the meaning of
Section 116. We find merit in the
submission which has been urged by Mr.
Sundaram. 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
case, 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 245-1996. Such a specific admission on the
part of the defendants is contained in Para
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 was no necessity of a
notice for the termination of the lease
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 year, 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."

6. He has further relied upon the
earlier judgment of Supreme Court in the
case of Park Street Properties Private
Limited v. Dipak Kumar Singh and
another (2016) 9 Supreme Court Cases
268 where exhaustive consideration has
been given to provision as contained under
Section 106 of Transfer of Property Act
and Section 17 (1) (d) read with Section 39
of the Registration Act. He has placed
before the Court paragraphs- 9,10,17, 19
which run as under:

"9. The learned Senior Counsel
places reliance on the decision of this
1 All. Pawan Kumar Kothiwal & Ors. Vs. State of U.P. & Ors.
331
Court in Samir Mukherjee v. Davinder K.
Bajaj, the relevant portion of which is
extracted as hereunder:

6. Section 107, prescribes the
procedure for execution of a lease between
the parties. Under the first paragraph of
this section 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
remaining classes of leases are governed
by the second paragraph, that is to say all
other leases of immovable property can be
made either by a registered instrument or
by an oral agreement accompanies by
delivery of possession.

7. In the case in hand, we are
concerned with an oral lease which is hit
by the first paragraph of Section 107 of the
Transfer of Property Act. Under Section
107 parties have an option to enter into a
lease in respect of an immovable property
either for a term less than a year or from
year to year, for an term exceeding one
year or reserving a yearly rent. If they
decide upon having a lease in respect of
any immovable property from year to year
or for any term exceeding one year, or
reserving a yearly rent, such a lease has to
be only by a registered instrument. In
absence of a registered instrument, no valid
lease from year to year or for a term
exceeding one year or reserving a yearly
rent can be created. If the lease is not a
valid lease within the meaning of the
opening words of Section 106, the rule of
construction embodied therein would not
be attracted. the above is the legal position
on a harmonious reading of both the
section.

8. In Ram Kumar Das Section
106 was considered by a Bench of four
Judges of this Court. This Court held that
this Section 106 lays down the rule of
construction which is to be applied when
there is no period agreed upon between the
parties and in such cases duration has to
be determined by reference to the object for
the purposes for which tenancy is created.
It was also held that the rule of
construction embodied in this section
applies not only to express leases of
uncertain duration but also to leases
implied by law which may be inferred from
possession and acceptance of rent and
other circumstances. It was further held
that it is not disputed that a contract to the
contrary as contemplated by Section 106 of
the Transfer of property Act need not be an
express contract; it may be implied but it
certainly should be a valid contract. On the
fact of that case, the Court held that

13. ... the difficulty in applying
this rule to the present case arises from the
fact that a tenancy from year to year or
reserving an yearly rent can be made only
by registered instrument, as lays down in
Section 107 of the Transfer of Property Act.

10. The learned Senior Counsel
Mr Sundaram further placed reliance on
the decision of this Court in K.B. Saha &
Sons (P) Ltd v. Development Consultant
ltd. wherein it was held as under:

34. From the principles laid down
in the various decisions of this Court and
the High Court, as referred to hereinabove,
it is evident that:

1. A document required to be
registered,
if
unregistered,
is
not
admissible into evidence under Section 49
of the Registration Act.

2. Such unregistered document
can however be used as an evidence of
collateral purpose as provided in the
proviso to Section 49 of the Registration
Act.

3. A collateral transaction must
be independent of, or divisible from the
transaction to effect which the law required
registration.
332 INDIAN LAW REPORTS ALLAHABAD SERIES

4. A collateral transaction must
be a transaction not itself required to be
effected by a registered document, that is, a
transaction creating, etc any right, title or
interest in immovable property of the value
of one hundred rupees and upwards.

5. If a document is inadmissible
in evidence for want of registration, none
of its term can be admitted in evidence and
that to use a document for the purpose of
providing an important clause would not be
using it as a collateral purpose.

35. In our view, the particular
clause in the lease agreement in question
cannot be called a collateral purpose. As
noted earlier, it is the case of the appellant
that the suit premises were let out only for
the particular named officer of the
respondent and accordingly, after the same
was vacated by the said officer, the
respondent was not entitled to allot it to
any other employee and was therefore,
liable to be evicted, which, in our view, was
an important term forming part of the lease
agreement. Therefore, such a clause,
namely, Clause 9 of the lease agreement in
this case, cannot be looked into even for
collateral purposes to come to a conclusion
that the respondent was liable to be evicted
because of violation of Clause 9of the lease
agreement,
which
is
admittedly
unregistered, can be looked into for the
purpose of evicting the respondent from the
suit premises only because the respondent
was not entitled to induct any other person
other than the named officer in the same.

17. A perusal of Section 106 of
the Act makes it clear that it creates a
deemed monthly tenancy in those cases
where there is no express contract to the
contrary, which is terminable at the notice
period of 15 days. The Section also lays
down the requirements of a valid notice to
terminate the tenancy, such as that it must
be in writing, signed by the person sending
it and be duly delivered. Admittedly, the
validity of the notice itself is not under
challenge. The main contention advanced
on behalf of the respondents is that the
impugned judgment and order is valid in
light of the second part of Section 107 of
the Act, which requires that lease for a
term exceeding one year can only be made
by way of a registered instrument.

19. It is also a well-settled
position of law that in the absence of a
registered instrument, the court are not
precluded from determining the factum of
tenancy from the other evidence on record
as well as the conduct of the parties. A
three judge Bench of this Court in
Anothony v. K.C Ittoop & sons held as
under:

12.... 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 there is such a transfer
of right to enjoy the property, a lease
stands creted. 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
paragraph has been extracted above and it
deals with the mode of creating the
particular kinds of lease mentioned therein.
The third paragraph 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 paragraph. Thus
dehors the instrument parties can create a
lease as envisaged in the second paragraph
of Section 107 which reads thus...
1 All. Pawan Kumar Kothiwal & Ors. Vs. State of U.P. & Ors.
333

13. When lease is a transfer of a
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.

16. Taking a different view would
be a contrary to the reality when parties
clearly intended to create a lease though
the document which they executed had not
gone into the processes of registration.
That lacuna had affected the validity of the
document, but what had happened between
the parties in respect of the property
became a reality. Non-registration of the
document
had
caused
only
two
consequences. One is that no leased
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 the lease
not exceeding one year stood created by
conduct of parties remains unrebutted.

Thus,
in
the
absence
of
registration of a document, what is deemed
to be created is a month-to-month tenancy,
the termination of which is governed by
Section 106 of the Act. "

7. He has also placed reliance upon the
Division Bench judgment of this Court in
the case of Rajeev Kumar v. State of U.P.
through Secretary Finance and Revenue
Department U.P. at Lucknow and others
[2016 (165) AIC 939 (Alld.HC)] where
lease created in respect of secured assets
for a period of nine years required to be
compulsorily registrable but executed upon
a notarized document, was held to have no
binding effect. He has placed before the
Court paragraphs 9 and 10 which run as
under:

"9. Having analyzed the legal
position, we now proceed to apply the same
to the facts of the case in hand. Admittedly,
petitioner claims to have a lease of the
premises in dispute in his favour on the
basis of a notarized document for a period
of nine years on payment of rent. The
question for consideration is whether the
notarized document which is a deed of
rental agreement (Annexure-1 to the writ
petition ) upon which the petitioner places
reliance can be said to be a document to
establish that he is bona fide lessee of the
secured assets. Section 107 of the Transfer
of Property Act prescribed how the lease is
to be made.

"107. Lease how made - A lease
of immovable property from year to year,
or any term exceeding one year, or
reserving a yearly rent can be made only
by registered instrument.

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

Where a lease of immovable
property
is
made
by
a
registered
instrument, such instrument or, where there
are more instruments than one, each such
instrument shall be executed by both the
lessor and the lessee;

Provided
that
the
State
Government may from time to time, by
notification in the Official Gazette, direct
that leases of immovable property, other
than leases from year to year, or for any
term exceeding one year, or reserving a
yearly rent, or any class of such leases,
may be made by unregistered instrument or
by oral agreement without delivery of
possession.

10. A bare reading of the
provision goes to show that lease of
immovable property from year to year or
for any term except one year can be made
334 INDIAN LAW REPORTS ALLAHABAD SERIES
only by registered agreement and all other
leases of immovable property can be made
either by registered instrument or oral
agreement
though
by
delivery
of
possession. In the case in case the period
mentioned in the document is from
6.1.2012 to 5.1.2012 i.e. 9 years under
section 107 of the Transfer of Property Act
such a instrument has to be necessarily
registered. Since the petitioner has failed to
produce any registered document executed
in his favour by the lessor, he cannot be
held to be entitled to remain in possession
of the secured assets for any term except
one year from the date of execution of the
document. Admittedly, the document being
relied upon by the petitioner, executed on
6.1.2012, is an unregistered document, his
possession is liable to be protected for a
period of one year from the said date. Thus,
only
irresistible
conclusion
is
that
petitioner is not entitled to possession of
the secured assets for more than one year
from the date of instrument/ date of rental
agreement dated 6.1.2012"

8. He has also placed relevant
paragraphs of Co-ordinate Bench judgment
of this Court in the Case of Union of India
and other v. Sudarshan Lal Talwar 2022
ALL L.J. 1623 in which the Court has held
that mere acceptance of rent after period of
termination of tenancy does not amount of
waiver. He has placed before the Court
paragraph-18 of the judgment which runs
as under.

"18. In the light of these decision
I therefore, find that mere acceptance of
rent after the period of termination of the
tenancy does not amount to waiver of
notice to quite. There must be some
intention of waiver. In the present case, the
opposite party actively prosecuted the suit
for ejectment filed by him. Therefore, it
cannot be accepted that the notice has been
waived. I, accordingly find that the trial
Court has rightly held that the notice to
quit has not been waived and, therefore, the
revisionist are liable to ejectment"

9. He has also relied upon another
judgment of learned Single Judge in the
case
of
Anish
Ahmad
v.
Special/
Additional District Judge, Saharanput and
others 1997 SCC Online All 303. Placing
before the Court paragraphs 5, 6, 7 and 8
regarding doctrine of waiver in the case of
termination of tenancy. Paragraphs 5, 6, 7,
8 and 9 are reproduced hereunder:

"5. A landlord can waive the
notice as provided under Section 113 of the
Transfer of Property Act which provides
that the notice given under Section 111,
Clause (h), is waived, with the express or
implied consent of the person to whom it is
given, by any act on the part of the person
giving it showing an intention to treat the
lease as subsisting. the person claiming
that the notice has been waived has to
satisfy two essential ingredients (i) the
intention of the landlord was to treat the
lease as subsisting, and (ii) he had a
knowledge of the fact that this conduct
amount to waiver.

6. In Associated Hotels of India
Ltd. v. S.B. Sardar Ranjit Singh, the
Hon'ble Supreme Court made the following
observation:

"A waiver is an intentional
relinquishment of a known right. There can
be no waiver unless the person against
whom the waiver is claimed had full
knowledge of his rights and of facts
enabling him to take effectual action for the
enforcement of such rights.

7. In Ram Krishna v. Jhaman
Das, it was held that if the landlord accepts
the rent after the institution of the suit for
1 All. Pawan Kumar Kothiwal & Ors. Vs. State of U.P. & Ors.
335
the period subsequent to the, date of
termination of tenancy, it cannot be held
that he has waived the notice.

8. In Gulab Singh Rawat v.
Disrict, Judge, Uttar Kashi, it was held that
if the landlord accepts the rent from the
tenant after expiry of the time granted to
the tenant for vacating the premises, it
would not amount to waiver of termination
of tenancy unless it is proved that a fresh
contract of tenancy was entered into
between the landlord and tenant.

9. If the landlord accepts the rent
for the period subsequent to the date of
termination of tenancy, that does not
amount to waiver of notice, unless there
are other compelling circumstances to
indicate that there was intention of the
landlord to treat the lease as subsisting."

10.
Meeting
the
arguments
so
advanced
above
by
learned
counsel
appearing for revision applicant Shri O.P.
Singh Sikarwar, learned Standing Counsel
has placed before the Court Section 90 of
the Registration Act, 1908 and has placed
before the Court Sub-Section 1 (d) of
Section 90 that runs as under:

"90.
Exemption
of
certain
documents executed by or in favour of
Government.

..........(d) sanads, inam title-deeds
and other documents purporting to be or to
evidence
grants
or
assignments
by
Government of land or of any interest in
land; or........."

11. Shri Sikarwar, sought to urge that
this was a kind of right created in respect of
an immovable property through a document
and since it provided for an interest in land
may be other than government land, it
should be taken to be covering the property
in question and, therefore, the law of
exemption would stand attracted. Shri
Sikarwar, defended the order passed by the
court dismissing the suit for the above very
reasons. However, Shri Sikarwar, would
very fairly concede that in the matter where
tenant status is of a tenant-in-sufferance,
such a tenant would not be entitled to the
benefit of Section 116 of the Transfer of
Property Act. Shri Sikarwar also, could not
cite any authority laying down law contrary
to authorities cited by learned counsel
appearing for revision applicant.

12. Having heard learned counsel
appearing for respective parties and having
perused the records of this revision as well
as trial court's records produced before the
Court, it comes out an admitted position on
the part of the plaintiff-revision applicant
that there was no agreement in writing as
such creating tenancy rights in favour of
the respondents. However, letter issued on
behalf
of
Governor
by
the
Deputy
Secretary on 19.05.2006 clearly stipulated
that tenancy was till 30.06.2009. Thus, it
was a fixed term tenancy starting from
01.07.1995 to end on 30.06.2009 and
another is a document on non-judicial
stamp filed by respondent and claimed to
have been signed by the landlord creating
tenancy w.e.f. 01.07.1994. This document
refers to lease rights created in favour of
respondents. The question arises as to
which document is to be read to interpret
tenancy
rights.
Admittedly
petitioners
before this Court denied to have executed
any document creating such rights and only
placed reliance upon authorized letter
issued on behalf of Governor. This can
only be taken to be a collateral document as
possessory rights and for a limited purpose
to decide jural relationship of landlord and
tenant relationship. Therefore, the court
even if did not rely upon this document to
have created any fixed time tenancy, the
336 INDIAN LAW REPORTS ALLAHABAD SERIES
findings cannot be held to be erroneous but
since the jural relationship of landlord
tenant has come to be determined and the
parties do agree to this, at the most, it can
be referable to only tenancy rights limited
to the year 2009. This is a case where one
has to acknowledge this fact that parties do
agree to jural relationship then such
documents can of course, be taken into
consideration only for the purposes of
determination of such relationship and to
that extent its admissibility cannot be
doubted.

13. The question that now arises is, as
to how to determine any fixed term tenancy
to have ever existed or this was a tenancy
in perpetuity as has been held by the court
below. Coming to the other document
which is on non-judicial stamp filed before
the
court
below
and
upon
which
respondents have placed heavy reliance as
it is their document, this evidences the
factum that the tenancy started from
01.07.1994,
however,
it
referred
to
payment of rent only till 30.05.2005. This
document interestingly contained another
clause paragraph 6 which prescribed that
even after expiry of the period new lease
would be executed with further 25%
enhancement of rent. It is not a case
between
the
parties
that
any
such
agreement was re-entered. This document
has been interpreted by the court below in
two ways: firstly the landlord petitioners
having continued the respondent beyond
the prescribed period w.e.f. 1.7.1994 to
30.05.2005,
have
by
their
conduct
continued the tenancy and, therefore,
tenant respondent would automatically
get entitled to the benefit under Section
116 and secondly, in view of clause-6 of
the said agreement, it amounted to
tenancy in perpetuity and not a fixed term
tenancy.

14. Here it becomes important and
rather pertinent to refer to relevant
provisions of the Transfer of Property Act
to define the status of such document.
Admittedly the court below has proceeded
to hold that the documents created a lease
right. Section 107 of the Transfer of
Property Act provides for the manner and
method in which leases have to be made in
respect of immovable property for the
purposes of period exceeding one year.
Section 107 of the Transfer of Property Act
reads as under:

"107. Lease how made - A lease
of immovable property from year to year,
or any term exceeding one year, or
reserving a yearly rent can be made only
by registered instrument.

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

Where a lease of immovable
property
is
made
by
a
registered
instrument, such instrument or, where there
are more instruments than one, each such
instrument shall be executed by both the
lessor and the lessee;

Provided
that
the
State
Government may from time to time, by
notification in the Official Gazette, direct
that leases of immovable property, other
than leases from year to year, or for any
term exceeding one year, or reserving a
yearly rent, or any class of such leases,
may be made by unregistered instrument or
by oral agreement without delivery of
possession".

(Emphasis added)

15. From a bare reading of aforesaid
provision as quoted above, the intendment
of the legislature appears to be absolutely
clear that leases beyond period of twelve
1 All. Pawan Kumar Kothiwal & Ors. Vs. State of U.P. & Ors.
337
months in respect of immovable property
have to be through registered instruments.
Thus, looking to the relevant clause of the
document of lease as filed by the
respondent which prescribed for period
running from 01.07.1994 till May, 2005 it
was necessarily required to be registered as
part Section 107 of the Transfer of Property
Act. Since this document is admittedly not
registered one, it cannot create lease rights
beyond a period of twelve months. It is not
disputed also between the parties that this
lease was not neither for agricultural
purposes, nor for manufacturing purposes
and, therefore, in such circumstances, lease
was to be taken as the one on month to
month
basis
and
determinable
with
issuance of thirty days' advance notice as
per the provisions contained under Section
106 of the Transfer of Properties Act as it
then stood on the statute. Section 106 is
reproduced hereunder:

"106. Duration of certain leases
in absence of written contract or local
usage.?

(1) 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
days' notice.

(2)
Notwithstanding
anything
contained in any other law for the time
being in force, the period mentioned in subsection (1) shall commence from the date of
receipt of notice.

(3) A notice under sub-section (1)
shall not be deemed to be invalid merely
because the period mentioned therein falls
short of the period specified under that subsection, where a suit or proceeding is filed
after the expiry of the period mentioned in
that sub-section.

(4) Every notice under subsection (1) must be in writing, signed by or
on behalf of the person giving it, and either
be sent by post to the party who is intended
to be bound by it or be tendered or
delivered personally to such party, or to
one of his family or servants at his
residence, or (if such tender or delivery is
not practicable) affixed to a conspicuous
part of the property."

16. I have already quoted the relevant
paragraphs of the judgment in the cases of
Park Street Properties Private Limited
(supra) and Rajiv Kumar (supra) in which
the Courts have held that such lease rights
can only be created in respect of
immovable property through registered
instrument only in view of Section 17 read
with Section 49 of the Registration Act
and, therefore, no lease rights can flow in
respect of immovable property beyond the
period prescribed for under Section 107 of
the Transfer of Property Act from an
unregistered instrument/ document.

17. In such above view of the matter,
therefore, the findings returned by the court
below that there was a lease in perpetuity
appears to be absolutely upon misreading
of the document as well as interpretation of
relevant provisions of law as discussed
above and these findings, therefore, cannot
be sustained in law.

18. Since I have already held above
that the lease in question would have been
on month to month basis in view of the
relevant provisions of the Transfer of
Property Act and the judgment discussed
338 INDIAN LAW REPORTS ALLAHABAD SERIES
and cited above, I do not see any
justification for the court in extending
benefit of Section 116 to the respondent.
The provisions as contained under Section
90 (1) (d) of the Registration Act as quoted
above
clearly
stipulates
only
such
certificates and documents which are issued
by the Government creating rights in
respect of Government land or any other
rights in respect of such lands and these
provisions cannot be interpreted to mean
any agreement entered between the private
party and the Government in respect of
private land. Any right in respect of
immovable property which is not creating
or conferring any assignment or right as
contemplated under Section 90(1) (d), is
required to be compulsorily registered
under the Registration Act, reading down
the relevant provisions of the Transfer of
Property Act with the provisions of the
Registration Act as discussed above.

19. In view of the above, therefore, the
notice issued by the landlord plaintiff
determining lease on 30.07.2009 was a
valid notice and since the notice has not
been disputed and the Act No. 13 of 1972
was not applicable, the suit deserves to be
decreed. Hence, the judgment and decree
passed by the trial Judge in SCC suit No.
16 of 2009 deserves to be set aside and suit
deserves to be decreed. Hence, the SCC
Suit No. 16 of 2009 is hereby decreed
directing the respondents to vacate the
premises in question.

20. At this stage, learned Standing
Counsel states that the State is running its
office from the demise premises, so some
reasonable time may be given to vacate the
premises.