# Smt. Malati Sharma Defendant v. Raj Kumar Yadav Plaintiff

- **Citation:** (2023) 3 ILRA 1261
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-09
- **Case number:** Matters Under Article 227 No. 2691 of 2020
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-malati-sharma-defendant-v-raj-kumar-yadav-plaintiff-49221
- **Pages:** 11

## Headnote

A. Civil Law - Landlord-tenant dispute-
Small Causes Suit for arrears of rent and
ejectment- decreed against the tenantrespondent
(petitioner
herein)-
Small
Causes
Revision
against
decree
also
dismissed-
Order
under
challenge-
Landlord respondent title- sale deed by
erstwhile owners- Petitioner occupant as
a tenant- recital to the said effect in sale
deed- landlord issued notice to defendant
petitioner- demanding rent and arrears-
tenant failed to pay rent- hence, the suit.

B. Petitioner tenant claimed right by
means of an unregistered agreement for
sale-
impact
of
an
unregistered
instrument- otherwise required to be
registered- whether it could have been
relied otherwise for collateral purposes in
court of law proceedings- yes, but
collateral purpose is to be seen in the
nature of possession of plaintiff over the
suit
land-
no
title
flows
from
an
unregistered instrument, which in law
requires
to
be
registered-
petitioner
tenant not entitled to any benefit on the
strength of agreement for sale.

HELD: Upon bare reading of the aforesaid
paragraphs of the judgment, the conclusion
drawn would be that an unregistered document
can be looked into for collateral purposes but
the collateral purpose is to be seen in the nature
of possession of plaintiff over the suit land.
Applying the above principles to the present
case, petitioner's predecessor in interest was
admittedly tenant of the tenanted premises in
question and came to change the nature of
possessory rights from the tenant to proposed
vendee under an agreement of sale which was
never registered.

The judgment cited clearly holds that no title
flows from an unregistered instrument, which in
law is required to be registered. If that be so
then status which the predecessor in interest of
the petitioner had enjoyed and from whom
petitioner succeeded that possessory rights, at
the most would be of a tenant and to retain
possession it is necessary to make payment of
rent otherwise a tenant in default of payment of
rent would deserve ejectment under the law.
The person under an unregistered agreement
1262 INDIAN LAW REPORTS ALLAHABAD SERIES
for sale cannot even maintain a suit for its
performance so as to acquire any possessory
rights in law. So the nature of possession would
only stand always to be a tenant qua the
premises.

C.
Evidence-
evidentiary
value-
for
appreciation in a judicial proceeding- no
document filed in original- trial court
rightly did not consider the notarised
photocopy of unregistered instrument.

HELD: In the present case only a notarized
photo copy of alleged agreement was filed. The
document led was not proved in the absence of
original. It could not have been a case for
raising any valid presumption in law either. A
notarized photocopy was also not proved by
getting public notary examined so as to claim
that it was a photo copy of the original. In such
view of the matter, therefore, neither benefit
under Section 53-A

## Text

3 All. Smt. Malati Sharma Vs. Raj Kumar Yadav
1261

17. So far as judgment cited by
learned counsel for petitioner in the case of
New Meena Sahkari Awas Samiti (supra) is
concerned, the pronouncement of law in the
said judgment is that court can not prevent
a party from adducing best evidence if such
evidence can be gathered with the help of
commission. The judgment cited by learned
counsel for petitioner is clearly correct in
terms of provisions of Order 26 Rule 9
CPC and does not take a contrary view to
the earlier judgment of this Court that
possession of parties over property in
dispute can not be determined by issuance
of commission. As such the petitioner does
not derive any benefit from the aforesaid
judgment.

18. Considering the judgment on the
point and law as discussed herein above, no
exception can be taken to the impugned
orders and as such the petition being devoid
of merits is dismissed.
----------
(2023) 3 ILRA 1261
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.11.2022

BEFORE

THE HON'BLE AJIT KUMAR, J.

Matters Under Article 227 No. 2691 of 2020
Connected With
S.C.C. Revision Defective No. 234 of 2014

Smt. Malati Sharma
 ...Defendant- Petitioner
Versus
Raj Kumar Yadav ...Plaintiff- Respondent

Counsel for the Petitioner:
Sri Kiran Arora, Sri Ram Akbal Upadhyay,
Sri Jai Govind Upadhyay

Counsel for the Respondent:
C.S.C., Sri Prakhar Tandon
A. Civil Law - Landlord-tenant dispute-
Small Causes Suit for arrears of rent and
ejectment- decreed against the tenantrespondent
(petitioner
herein)-
Small
Causes
Revision
against
decree
also
dismissed-
Order
under
challenge-
Landlord respondent title- sale deed by
erstwhile owners- Petitioner occupant as
a tenant- recital to the said effect in sale
deed- landlord issued notice to defendant
petitioner- demanding rent and arrears-
tenant failed to pay rent- hence, the suit.

B. Petitioner tenant claimed right by
means of an unregistered agreement for
sale-
impact
of
an
unregistered
instrument- otherwise required to be
registered- whether it could have been
relied otherwise for collateral purposes in
court of law proceedings- yes, but
collateral purpose is to be seen in the
nature of possession of plaintiff over the
suit
land-
no
title
flows
from
an
unregistered instrument, which in law
requires
to
be
registered-
petitioner
tenant not entitled to any benefit on the
strength of agreement for sale.

HELD: Upon bare reading of the aforesaid
paragraphs of the judgment, the conclusion
drawn would be that an unregistered document
can be looked into for collateral purposes but
the collateral purpose is to be seen in the nature
of possession of plaintiff over the suit land.
Applying the above principles to the present
case, petitioner's predecessor in interest was
admittedly tenant of the tenanted premises in
question and came to change the nature of
possessory rights from the tenant to proposed
vendee under an agreement of sale which was
never registered.

The judgment cited clearly holds that no title
flows from an unregistered instrument, which in
law is required to be registered. If that be so
then status which the predecessor in interest of
the petitioner had enjoyed and from whom
petitioner succeeded that possessory rights, at
the most would be of a tenant and to retain
possession it is necessary to make payment of
rent otherwise a tenant in default of payment of
rent would deserve ejectment under the law.
The person under an unregistered agreement
1262 INDIAN LAW REPORTS ALLAHABAD SERIES
for sale cannot even maintain a suit for its
performance so as to acquire any possessory
rights in law. So the nature of possession would
only stand always to be a tenant qua the
premises.

C.
Evidence-
evidentiary
value-
for
appreciation in a judicial proceeding- no
document filed in original- trial court
rightly did not consider the notarised
photocopy of unregistered instrument.

HELD: In the present case only a notarized
photo copy of alleged agreement was filed. The
document led was not proved in the absence of
original. It could not have been a case for
raising any valid presumption in law either. A
notarized photocopy was also not proved by
getting public notary examined so as to claim
that it was a photo copy of the original. In such
view of the matter, therefore, neither benefit
under Section 53-A of the Transfer of the
Property Act, 1882 should have been given to
the petitioner to protect possession in suit for
recovery of arrears of rent and ejectment nor,
the suit could be held to be not maintainable
and required return of plaint under Section 23 of
Provincial Small Cause Courts Act, 1887.

One must remember that the evidence, which is
required to be appreciated by a court of law in a
judicial proceeding, must be having evidenciary
value. The pleadings if raised are not supported
by lawfully admissible evidence then any
St.ment of fact in a pleading would stood
unworthy of consideration unless admitted to
the rival side. So the argument that the Court
did not appreciate the document of agreement
for sale filed, in my cconsidered view is totally
misplaced as no such document was filed in
original. The document being unregistered one
was required to be filed in original and was to
be proved in accordance with law as well

D. Tenant's defence stood struck off in the
suit- finding not assailed in revision-
tenant claimed possessory rights under an
agreement for sale- courts below- held
petitioner's status as tenant- respondent
landlord entitled to recover rent-petitioner
deserved
ejectment-
admittedly,
petitioner did not pay rent- defence rightly
struck off under Order XV Rule 5 of CPC.
HELD: So in my considered view, since
admittedly petitioner has not paid rent even in
compliance of second part of Order XV of Rule 5
of Code of Civil Procedure, 1908, the defence
has rightly been struck off. Having discussed the
aforesaid fact and the law on the point, I find no
error much less a substantial one in the findings
either returned by the trial court or in revision
and, therefore, I decline to interfere in the
matter any exercise of my supervisory power
under Article 227 of the Constitution.

E. Jurisdiction of Judge, Small Causes
Court-
hearing
a
summary
suit
questioning title of landlord- Small Causes
Courts
can
incidentally
go
into
the
question of title in a suit between a
landlord and a tenant- subject to decision
of regular civil court in the civil suit, if
filed.

HELD: On the point of jurisdiction of Judge,
Small Causes to hear a summary suit where title
of land lord has been questioned, this Court in
the case of Suresh & anr. v. Ram Bharosey Lal
Gupta & ors. 2014 0 Supreme (All) 1579 (2014
11 ADJ 327) considered the matter of return of
plaint on the basis of unregistered instrument of
sale of an immovable property. The Court
examined first Section 54 of the Transfer of
Property Act alongside Section 17 of the Indian
Registration Act, 1968 vide paragraph 17 and
then also examined Section 23 of the Provincial
of Small Cause Courts Act, 1887 vide paragraph
18 and then referred to the judgment of
Supreme Court in the case of Budhu Mal v
Mahabir Prasad and Others, AIR 1988 SC 1772
vide paragraph 21 by reproducing the relevant
paragraph of the Supreme Court's judgment.
Learned Single Judge thereafter proceeded to
refer the judgment of the Supreme Court in the
case of Shamim Akhtar v. Iqbal Ahmed, AIR
2001 SC 1, wherein Supreme Court had held
that Small Causes Court can incidently go into
question of title in a suit between land lord and
the tenant but of course, subject to the decision
of a regular civil court in the civil suit, if filed.
The Court also referred to the judgment in the
case of Sheel Chand v. IInd A.D.J.,Jhansi, 2006
(1) ARC 359 and then finally held that question
of rejection of plaint would arise when the court
cannot decide the right of plaintiff and relief
claimed by him for want of proof or disproof of
3 All. Smt. Malati Sharma Vs. Raj Kumar Yadav
1263
title. In that case, land lord had set up a title on
the basis of registered instrument whereas
defendants were contesting the matter on the
basis of unregistered instrument which the
Court held to be ex facie illegal.

Petition dismissed. (E-14)

List of Cases cited:

1. Dharmaji @ Baban Bajirao Shinde Vs
Jagannath Shankar Jadhav, 1994 LawSuit (Bom)
3

2. A R C Overseas Pvt. Ltd. Vs Bougainvillea
Multiplex and Entertainment Centre Pvt. Ltd. &
anr., 2007 LawSuit (All) 1562

3. Maya Devi & anr. Vs Vipin Kumar Kushwaha &
anr., 2016 0 Supreme (All) 3530

4. Suresh & anr. Vs Ram Bharosey Lal Gupta &
ors. 2014 (11) ADJ 327

5. Budhu Mal Vs Mahabir Prasad & ors., AIR
1988 SC 1772

6. Shamim Akhtar Vs Iqbal Ahmed, AIR 2001 SC
1

7. Sheel Chand Vs IInd A.D.J.,Jhansi, 2006 (1)
ARC 359

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

1. Heard Sri K.K.Arora, learned
counsel for the petitioner and Sri Prakhar
Tandon, learned counsel for the contesting
respondents.

2. Both the matters arise out of same
suit, therefore, are being heard and decided
together by this common judgment.

3. The petitioner before this Court is
tenant respondent in Small Causes Suit No.
193 of 2012, which came to be decreed
dated 24.7.2019 for arrears of rent and
ejectment.

4. The petitioner challenged the order
of the Judge Small Causes before the
Additional District Judge, Court No. 2 by
instituting Small Causes Revision being
No. 60 of 2019 which also came to be
dismissed vide order dated 31st January,
2020 confirming the judgment of the Judge,
Small Causes and hence this miscellaneous
petition
under
Article
227
of
the
Constitution.

5. Present petitioner has also filed
revision against the order passed by the
Judge,
Small
Causes
rejecting
the
application of the petitioner under Section
23 of Small Causes Courts Act, 1887.

6. The main arguments that were
advanced by learned counsel for the
petitioner can be summarized as under:

i.
The
petitioner
having
questioned the title of the land lord plaintiff
qua property in question which is a
residential house, the Judge Small Causes
could not have decided the suit for arrears
of rent and ejectment;

ii. While deciding point no. 1 the
Judge, Small Causes, absolutely failed to
take into account the pleadings raised in the
written statement with regard to an
agreement for sale between vendors of the
plaintiff land-lord and the husband of the
petitioner so as to appreciate her claim for
acquiring possession by way of transfer
and, therefore, her status as a tenant had
changed entitling her to claim possessory
rights in terms of Section 53-A of the
Transfer of the Property Act, 1882; and

iii. The petitioner having already
instituted a suit to declare the sale deed
executed in favour of the land lord plaintiff
dated 13.06.2011 to be null and void, the
benefit under Section 23 of the Small
1264 INDIAN LAW REPORTS ALLAHABAD SERIES
Causes Act, should have been given to him
and his application was wrongly rejected.

7. In support of his arguments,
learned counsel for the petitioner relied
upon the judgment of Bombay High Court
in the case of Dharmaji @ Baban Bajirao
Shinde v. Jagannath Shankar Jadhav,
1994 LawSuit (Bom) 3 and that of this
Court in the case of A R C Overseas
Private
Limited
v.
Bougainvillea
Multiplex and Entertainment Centre
Pvt. Ltd. And Another, 2007 LawSuit
(All) 1562.

8. Per contra, the arguments advanced
by learned counsel for the respondent land
lord are:

(i).
Petitioner
having
not
deposited rent even as per second part of
Rule 5 (Allahabad Amendment) of Order
XV of Code of Civil Procedure, 1908
(CPC) his defence was rightly struck off
and this finding having not been assailed
either in the Small Causes Revision or
before this Court, the suit deserved to be
decreed and revision petition was also
rightly dismissed and so now these
petitions also deserve to be dismissed; and

(ii) land lord had acquired valid
title by virtue of sale deed dated 13.6.2011,
executed by admitted owners, namely,
Deepak Kumar, Gopal Das, through his
power of attorney and Indra Kumar,
successor in interest of Tikam Chand and
the instrument of sale very much contained
recitals to the effect that contesting
petitioner was a tenant only and was in
arrears of rent, therefore, vendee would be
entitled to maintain a suit for ejectment by
determining tenancy with issuance of
notice under Section 106 of the Transfer of
Property Act, 1888, for recovery of arrears
of rent and ejectment;

(iii). Petitioner failed to lead any
evidence by producing original agreement
for sale which was claimed so as to set up
any prima facie right to hold possession
and photocopy of the agreement for sale
being
secondary
evidence
was
not
admissible in absence of any admission at
the end of plaintiff in that regard;

(iv). Neither registered power of
attorney dated 14.7.1998 was admitted to
the land lord respondents nor, sale deed
admittedly executed by two owners of the
property and the power of attorney holder
of third owner dated 13.6.2011 admitted
tenant respondent to be owner, nor did it
contain any recital in respect of any
notarized agreement for sale executed on
14.7.1998.

(v). There was no reason to
execute an unregistered agreement for sale
and only notarized it whereas power of
attorney executed in the same date dated
14.07.1998 was registered.

(vi). This Court in exercise of its
supervisory jurisdiction under Article 227
of the Constitution would not enter into
findings of fact unless findings of fact are
so perverse that if they are not arrested, it
woud lead to miscarriage of justice .

9. Learned counsel for the respondent
accordingly submitted that in the present
case none of the findings could be held to
be perverse nor, there was any such ground
taken in this miscellaneous petition except
the ground that the tenant petitioner having
questioned the title, Court could not have
tried the suit as Small Causes Suit treating
the petitioner to be tenant and respondent
as land lord.

10. Before coming to the legal
arguments advanced before this Court, it is
necessary to briefly state facts of the case
so as to have better appreciation of the
3 All. Smt. Malati Sharma Vs. Raj Kumar Yadav
1265
arguments advanced by learned counsel
appearing for the respective parties.

11. The land lord respondent claimed
to have acquired title of the premises in
question which is a residential house, by
registered sale deed executed in his favour
on 13.06.2011 by Deepak Kumar, Indra
Kumar, S/o Tikam Chand and Anup
Mishra, the power of attorney holder of
Gopal Das and the sale deed transferred the
possession of entire premises in favour of
Raj Kumar Yadav and carried recital very
much to the effect that in the entire
building, Smt. Malti Sharma was in
occupation as a tenant with liability to pay
rent @ Rs. 100/- per month to the vendors
coupled with the house tax, water tax and
sewer tax totalling to Rs. 944/- per month,
however since 1995 despite demand she
did not pay rent and so she ran into arrears
of rent since 1st April, 1995 which she was
liable to pay and, therefore, through the
sale deed right to demand rent stood
transferred to the vendee and also to get her
evicted from the premises in the event rent
was not paid, by bringing in a suit for
recovery of arrears of rent and ejectment.

12. The land lord respondent did issue
notice
to
the
defendant
petitioner
demanding rent and arrears thereof and
when the petitioner failed to pay rent in
response to the notice, he instituted a suit
for recovery of rent and ejectment .

13. It appears that while petitioner
tenant
filed
her
written
statement
questioning the right of the land lord
respondent to demand rent, she also
instituted a suit for declaring sale deed
dated 13.6.2011 as null and void and also
sought relief in the nature of permanent
prohibitory injunction and it is in this
background that an application under
Section 23 of the Provincial Small Causes
Act, 1887 came to be filed before the
Judge, Small Causes which was dismissed
against which revision was also dismissed
and against that miscellaneous petition has
been filed.

14. In the written statement plea was
taken
that
owner
of
the
property
Tikamchand, Gopal Das, Deepak Kumar
executed notarized agreement for sale on
14.09.1998 in favour of the petitioner and
her husband and petitioner got them paid in
advance certain amount as a consideration
and then power of attorney was executed
on 14.9.1998 in favour of Anuj Mishra by
all three owners of the property to manage
property in question and if decided to
execute the sale, in that event sale was to
be
executed
in
favour
of
proposed
purchaser. The sale deed was never
executed as such whereas Tikam Chand's
son, Indra Kumar, Deepak Kumar and one
Anuj Mishra in the capacity of power of
attorney holder of Gopal Das executed sale
deed on 13.6.2011 in favour of Raj Kumar,
the land lord respondent.

15. Points for determination that were
formulated by Judge Small Causes included
also a point for determination, as to
whether defence of the tenant petitioner
was liable to be struck off under Order XV
Rule 5 for non payment of rent even after
institution of suit.

16. All the issues were answered in
favour of the land lord respondent and the
suit was decreed.

17. In the case of A R C Overseas
Private Limited (supra) cited by learned
counsel for the petitioner, this Court had
the occasion to examine the impact of an
unregistered instrument, which otherwise
1266 INDIAN LAW REPORTS ALLAHABAD SERIES
was required to be registered under the
Indian Registration Act, and whether it
could have been relied upon otherwise for
collateral purposes in Court of law
proceedings. In the said case, the plaintiff
appellant
claimed
to
be
in
lawful
occupation of a shop by virtue of a lease
executed between the parties, however
boards of the shop got removed by the
lessor and the lessee was threatened from
entering into the shop again. The suit for
injunction brought by lessee was dismissed,
against which appeal was preferred. The
plaintiff was non suited on the ground that
there was an arbitration clause under the
lease agreement entered into between the
parties.

The whole issue, therefore, in the
said case was that the document being
unregistered whether could not be used for
any collateral purpose. It was in these
circumstances, the Court proceeded to
examine Section 107 of the Transfer of
Property Act 1882 alongside Section 49 of
the Registration Act, 1908 and vide
paragraphs 12 and 13, the Court held thus:

"12. If we go through the later
part of second paragraph of Section 107 of
the Transfer of Property Act, as above, we
shall be able to find that lease by oral
agreement accompanied by delivery of
possession
need
not
be
registered.
Therefore, if the registration of the
document is not available to the appellant
but it was in the possession, the same is
good enough for the purpose of creation of
jural relationship between the parties. It is
significant to note that the appellant has
relied upon his initial possession. In
paragraph 14 of the Judgment in Anthony
v. K.C. Ittoop and Sons and Ors. , it was
held that when it is admitted by both rides
that the appellant was inducted into the
possession of the building by the owner
thereof and that the appellant was paying
monthly rent or had agreed to pay rent in
respect of the building, the legal character
of the appellant's possession has to be
attributed to a jural relationship between
the parties. Such a jural relationship, on
the fact-situation of the case, cannot be
placed anything different from that of
lessor and lessee falling within the purview
of second paragraph of Section 107 of the
Transfer of Property Act.

13. Secondly, last part of Section
49 of the Registration Act, as above,
specifically speaks that "as evidence of any
collateral transaction not required to be
effected
by
registered
instrument".
Therefore, law is crystal clear to that
extent. In Mattapalli Chelamayya (dead) by
his Legal Representatives and Anr. v.
Mattapalli Venkataratnam (dead) by his
Legal Representatives and Anr. . the
Supreme Court held that it should be noted
that Section 49 does not say that the
document cannot be received in evidence at
all. All that it says the document cannot be
received as evidence of any transaction
affecting such property. If under the
Evidence Act the document is receivable in
evidence for a collateral purpose, Section
49 is no bar. This construction of the
provision, which was accepted for a long
time by the High Courts, has been duly
recognized by the amending Act 21 of
1929, which added a proviso to the section.
The proviso clearly empowers the Courts to
admit any unregistered document as
evidence of a collateral transaction not
required to be registered. In Satish Chand
Makhan and Ors. v. Govardhan Das Byas
and Ors. , it was held that unregistered
lease deed can be admitted in evidence for
collateral purpose, invoking proviso to
Section 49 of the Registration Act, as terms
of lease are not a collateral purpose within
its meaning. In Rai Chand Jain v. Miss
3 All. Smt. Malati Sharma Vs. Raj Kumar Yadav
1267
Chandra Kanta Khosla , speaks that it is
well
settled
that
unregistered
lease
executed by both the parties can be looked
into for collateral purposes. In Bondar
Singh and Ors. v. Nihal Singh and Ors. , it
was held that legal position is clear that
Petition allowed document like the sale
deed, even though not admissible in
evidence, can be looked into for collateral
purposes. The Court held that the collateral
purpose is to be seen on the nature of the
possession of the plaintiffs over the suit
land. The sale deed in question at least
shows that initial possession of the
plaintiffs over the suit land was not illegal
or unauthorized. Therefore, the undisputed
initial possession herein is the guiding
factor about validity of the document."

18. Upon bare reading of the
aforesaid paragraphs of the judgment, the
conclusion drawn would be that an
unregistered document can be looked into
for collateral purposes but the collateral
purpose is to be seen in the nature of
possession of plaintiff over the suit land.

19. Applying the above principles to
the present case, petitioners predecessor in
interest was admittedly tenant of the
tenanted premises in question and came to
change the nature of possessory rights from
the tenant to proposed vendee under and
agreement of sale which was never
registered.

20. The judgment cited clearly holds
that no title flows from an unregistered
instrument, which in law is required to be
registered. If that be so then status which
the predecessor in interest of the petitioner
had enjoyed and from whom petitioner
succeeded that possessory rights, at the
most would be of a tenant and to retain
possession it is necessary to make payment
of rent otherwise a tenant in default of
payment of rent would deserve ejectment
under the law. The person under an
unregistered agreement for sale cannot
even maintain a suit for its performance so
as to acquire any possessory rights in law.
So the nature of possession would only
stand always to be a tenant qua the
premises.

21. Looking to this nature of
possession of a tenant, an unregistered
agreement would only hold him to be not
an unauthorized occupant and to that extent
instrument will have an evidenciary value
so as not to invoke provision for deemed
vacancy under the Act No. 13 of 1972.

22. The Judgment of Bombay High
Court in the case of Dharmaji @ Baban
Bajirao Shinde (supra) cited by learned
counsel for the petitioner also holds
protection of possession to such an extent
only. Hon' V.A.Mohta, J vide paragraphs 4
and 5 of the judgment held thus:

"4. Scrutiny of Sec. 53A would
indicate that the necessary conditions for
application of the provisions are : (1)
There is a written contract signed by or on
behalf of the transferor to transfer the
immoveable property for consideration. (2)
The terms of the contract pertaining to
transfer
are
clearly
discernible.
(3)
Transferee in part performance of the
contract is either put in possession or is
continued in possession and has done some
act in furtherance of the contract. (4)
Transferee has performed or is willing to
perform his part of the contract. Wherever
the above conditions are fulfilled the
transferor or any person claiming under
him is debarred from enforcing against the
transferee or any person claiming under
him any right in respect of the property in
1268 INDIAN LAW REPORTS ALLAHABAD SERIES
question even though the contract though
required to be registered is not registered
or where there is instrument of transfer, the
transfer is not legally complete.

5. The section recognizes in a
modified form English doctrine of equity of
part performance, which is designed to
relieve the rigour of law and provides a
remedy when a transfer or an agreement to
transfer falls short of legal requirements. It
is meant to protect transferees who for
appropriate consideration take possession,
spend money and/or put in labour in
improvements relying on the terms of the
contract which for want of registration or
any other legal requirement cannot be
proved or cannot confer title on them. Thus
the crux of the provision seems to be that
mutual covenants are operative though title
is not transferred as a result, the transferee
though cannot seek to enforce his title can
resist the attack on his rights under the
contract, which would include right to
retain possession. Often it is said that the
right cannot be used as a sword and can be
used only as a shield. If this right as a
shield is available to him as a defendant, I
do not see any justification for a view that
it would be denied to him even if by force of
circumstances he as a law abiding citizen is
compelled to approach the Court as a
plaintiff to use that shield. The transferee is
entitled to resist any attempt on the part of
the transferor to disturb transferee's lawful
possession under the contract of sale and
his position --either as a plaintiff or as a
defendant --should make no difference.
Contrary interpretation viz., the transferee
can use the shield only as a defendant and
not as a plaintiff, would defeat the very
spirit of Section 53-A for it will be possible
for an over powering transferor to forcibly
dispossess the transferee even against the
covenants in the contract and compel him
to go to the Court as a plaintiff. As far as
letter of law is concerned, there is nothing
which militates against the above object
oriented interpretation. "

23. But even this limited protection, I
would further hold would otherwise be
available to the petitioner if she proves it
by leading a document in evidence either as
primary evidence or secondary to be
proved. In the present case only a notarized
photo copy of alleged agreement was filed.
The document led was not proved in the
absence of original. It could not have been
a case for raising any valid presumption in
law either. A notarized photocopy was also
not proved by getting public notary
examined so as to claim that it was a photo
copy of the original. In such view of the
matter, therefore, neither benefit under
Section 53-A of the Transfer of the
Property Act, 1882 should have been given
to the petitioner to protect possession in
suit for recovery of arrears of rent and
ejectment nor, the suit could be held to be
not maintainable and required return of
plaint under Section 23 of Provincial Small
Cause Courts Act, 1887.

24. One must remember that the
evidence,
which
is
required
to
be
appreciated by a court of law in a judicial
proceeding, must be having evidenciary
value. The pleadings if raised are not
supported by lawfully admissible evidence
then any statement of fact in a pleading
would stood unworthy of consideration
unless admitted to the rival side. So the
argument that the Court did not appreciate
the document of agreement for sale filed,
in
my
cconsidered
view
is
totally
misplaced as no such document was filed
in
original.
The
document
being
unregistered one was required to be filed
in original and was to be proved in
accordance with law as well.
3 All. Smt. Malati Sharma Vs. Raj Kumar Yadav
1269

25. Yet another point which is to be
considered in the matter is that petitioner
defence stood struck off in the suit and yet
petitioner did not take any plea in the entire
memo of revision filed before the court
below assailing the findings on the relevant
issue no. 4. Since it is admission on the part
of the petitioner that he was not paying rent
for acquired possessory rights under an
agreement for sale and her status changed
from the tenant of the proposed purchaser
and as such she was questioning the title of
the respondent land lord, possibly for this
very reason she did not contest the issue.
Courts below have held that petitioner did
continue in the capacity of tenant of the
original land lord, who passed on title to
the contesting respondent, and the sale deed
contained recitals that petitioner was tenant
and was in arrears of rent so land lord
/respondent (subsequent purchasers) would
be entitled to recover the rent and in the
event of default, to claim ejectment. The
suit was thus rightly filed and the payment
having not been made towards rent by the
petitioner, she deserved ejectment.

26. This Court in the case of Maya
Devi and Another v. Vipin Kumar
Kushwaha and Another, 2016 0 Supreme
(All) 3530, has very clearly held that
whether defendant admits in a suit for
recovery of arrears of rent and ejectment
himself to be tenant or owner even if the
defendants questioning the title of land lord
and his right to maintain suit, he is required
to pay rent in compliance of the second part
of Order XV of Rule 5 of the Code of Civil
Procedure, 1908 dealing with relevant
provisions of the Code of Civil Procedure,
1908. Vide paragraphs 5,6, 7,8 and 9 the
Court has held thus:

"5. Order XV Rule 5 CPC
applicable in the State of U.P. is in two
parts. The first part deals with the deposit
of amount admitted by the tenant to be due
and the second part deals with the monthly
amount due whether it is admitted or not by
the tenant. In default in payment of either
of the two amounts mentioned in the
aforesaid two parts of Rule 5 of Order XV
CPC, the court would be empowered to
struck off the defence.

6.
In
Pradyuman
Jee
vs.
Special/Additional District Judge, Ballia
and others 2008 (71) ALR 892, it has been
held that in case where the defendant
denies the existence of landlord and tenant
relationship, he may not be required to
deposit the amount referred to in the first
part of Rule 5 Order XV CPC, but he would
still be required to deposit "monthly
amount due" within a week from the date of
its accrual throughout the continuation of
the suit whether he admit the said amount
to be due or not.

7. The aforesaid decision was
followed by this Court in the case of
Mukesh Singh and another vs. Ramesh
Chand Solanki 2011 (89) ALR 655. His
Lordship therein held that as the tenant
therein had not complied with the second
part of Rule 5 of Order XV CPC the
defence was rightly struck off irrespective
of the fact that he denied the relationship of
landlord and tenant.

8. A similar view has also been
expressed by another Judge of this Court in
the case of Yusuful Haq @ Yusuf and
others vs. Smt. Ghayyur Fatma and others
2012 (92) ALR 526.

9. In the aforesaid case it was
held that where the defendant denies the
existence
of
landlord
and
tenant
relationship, he may not be required to
deposit the amount admitted to be due at or
before the first hearing of the suit but he
would still be required to deposit the
monthly amount due within a week from the
1270 INDIAN LAW REPORTS ALLAHABAD SERIES
date
of
its
accrual
throughout
the
continuation of the suit because such
deposit has to be made in spite of the fact
he admits any amount to be due or not.

27. So in my considered view, since
admittedly petitioner has not paid rent even
in compliance of second part of Order XV
of Rule 5 of Code of Civil Procedure, 1908,
the defence has rightly been struck off.

28. Having discussed the aforesaid
fact and the law on the point, I find no error
much less a substantial one in the findings
either returned by the trial court or in
revision and, therefore, I decline to
interfere in the matter any exercise of my
supervisory power under Article 227 of the
Constitution.

29. On the point of jurisdiction of
Judge, Small Causes to hear a summary
suit where title of land lord has been
questioned, this Court in the case of Suresh
and Another v. Ram Bharosey Lal
Gupta and Others 2014 0 Supreme (All)
1579 (2014 11 ADJ 327) considered the
matter of return of plaint on the basis of
unregistered instrument of sale of an
immovable property. The Court examined
first Section 54 of the Transfer of Property
Act alongside Section 17 of the Indian
Registration Act, 1968 vide paragraph 17
and then also examined Section 23 of the
Provincial of Small Cause Courts Act, 1887
vide paragraph 18 and then referred to the
judgment of Supreme Court in the case of
Budhu Mal v Mahabir Prasad and Others,
AIR 1988 SC 1772 vide paragraph 21 by
reproducing the relevant paragraph of the
Supreme Court's judgment. Learned Single
Judge thereafter proceeded to refer the
judgment of the Supreme Court in the case
of Shamim Akhtar v. Iqbal Ahmed, AIR
2001 SC 1, wherein Supreme Court had
held that Small Causes Court can incidently
go into question of title in a suit between
land lord and the tenant but of course,
subject to the decision of a regular civil
court in the civil suit, if filed. The Court
also referred to the judgment in the case of
Sheel Chand v. Iind A.D.J.,Jhansi, 2006 (1)
ARC 359 and then finally held that
question of rejection of plaint would arise
when the court cannot decide the right of
plaintiff and relief claimed by him for want
of proof or disproof of title. In that case,
land lord had set up a title on the basis of
registered instrument whereas defendants
were contesting the matter on the basis of
unregistered instrument which the Court
held to be ex facie illegal. Vide paragraph
17, 25, 26, the Court held thus:

"17. The transfer of immoveable
property is governed by Act, 1882 and
provides the way in which an immoveable
property can be transferred. Section 54
says that transfer of immoveable can be
made either by registered instrument or by
delivery of property of a value less than
Rs.100/-. No other mode is prescribed in
the section. It is not stated therein that if a
document is written so as to transfer
immoveable property worth below Rs.100/-
, it shall not require registration. On the
contrary, if it is worth less than Rs.100/-
and transfer is not proposed by an
instrument reduced in writing, by mere
delivery of property such transfer is
permissible but where it is reduced in
writing, it must be a registered instrument.
Moreover, there is no exclusion with
regard to requirement of registration of
aforesaid document under Section 17 of
Act, 1908. The documents, which are
excluded
from
the
requirement
of
registration, does not include transfer of
immoveable property by sale irrespective of
amount of consideration. Even otherwise,
3 All. Vijay Kumar Chaubey Vs. Rajendra Agarwal
1271
Section 17 of Act, 1908 nowhere provides,
if a registration of a document is provided
under any statute, that would not be
necessary by virtue of Section 17 of Act,
1908. Section 17 of Registration Act
nowhere has overriding effect as such over
Section 54 therefore, both these provisions
have to be read together. That being so, I
am clearly fortified from the view taken by
this Court in Budhi Ram (supra) that sale
of property, if made through an instrument
in writing then it shall not result in transfer
of property, even if worth of property is less
than
Rs.100/-,
since
registration
of
document is necessary by virtue of Section
54 of Act, 1882. In such a case, I do not
find any provision which may come to help
a party who is staking his claim on the
basis of an unregistered instrument. I am,
therefore, clearly in agreement with the
view taken by Court below that sale deed
dated 22.12.1976, being an unregistered
document, was a nullity and did not result
in conferring any rights upon defendanttenants i.e. petitioners with regard to suit
property.

25. The above authorities clearly
show that a mere dispute of title raised,
would not oust the jurisdiction of Small
Cause Court in proceeding to decide a suit,
filed before it, and it is not bound to return
the plaint on mere raising of such a
dispute. Section 23 clearly says; only when
the Court comes to the conclusion that it
cannot decide the right of plaintiff and
relief claimed by him since that would
depend upon the proof or disproof of a title
to immovable property, it may return the
plaint and not otherwise.

26. In the present case plaintifflandlord claim their rights founded on a
registered instrument while the petitionerdefendants contested the matter relying on
an unregistered document which was ex
facie
illegal.
Hence
there
was
no
substantial dispute of title. It cannot be said
that plaint ought to have been returned by
Trial Court and the suit was incompetent.
This question is also answered against
petitioners. "

30. In the present case I also find that
respondent land lord has acquired title by
virtue of a registered sale deed dated
13.6.2011 whereas petitioner tenant was
contesting the title of the land lord on the
basis of an unregistered agreement for sale
of which even original copy was not filed
before the Court as an evidence to the
pleadings raised .

31. In view of above, therefore, I do
not find any error apparent on the face of
record in the judgments and order passed
by the trial court and, therefore, refuse to
interfere in this revision petition. Both the
petitions filed under Article 227 of the
Constitution and revision filed under
Section 25 of the Provincial of Small Cause
Courts Act, 1887, being no. 234 of 2014
accordingly dismissed for want of merit
and consigned to records.
----------
(2023) 3 ILRA 1271
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.12.2022

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

Matters Under Article 227 No. 10252 of 2022
(Civil)

Vijay Kumar Chaubey
 ...Defendant- Petitioner
Versus
Rajendra Agarwal ...Plaintiff- Respondent

Counsel for the Petitioner:
Sri Akhilesh Kumar Singh