JUDGMENT
N.C. Sil, J.
1. The present appeal is directed against the judgment and decree dated 29.4.1997 passed by Sri S. Mondal, learned Assistant District Judge, Second Court, Hooghly in connection with Title Appeal No. 161 of 1993 affirming the judgment and decree dated 31.05.1993 passed by Sri T. Uddin, learned Munsif, 1st Court, Hooghly in connection with Title Suit No. 209 of 1990.
2. The suit before the learned lower Court was for declaration and permanent injunction filed by the plaintiff/tenant against the defendant/ landlady. The fact of the case in brief is that the plaintiff was inducted in the suit premises as a tenant for a term of five years under an agreement of tenancy dated 26.02.1990 and the monthly rent was fixed at Rs. 250/-. The said tenancy was taken for the purpose of starting a grill business from the suit premises. For that purpose the plaintiff took up the re-orientation of the suit premises and in course of that the plaintiff used to
keep the key of the suit premises with the landlady as the suit room is a part of the dwelling house of the defendant being connected by a door as well as a shutter. On the basis of such tenancy the plaintiff took all the preliminary steps for starting the grill business including trade licence, electric connection, bank loan etc. The defendant/landlady had also issued rent receipt in favour of the plaintiff. Subsequently, the defendant did not hand over the suit premises to the plaintiff and as such the suit was filed. The defendant contested the suit and denied all the material allegations. It was, inter alia, stated that there is a very close relation between the parties and taking advantage of such relation the plaintiff got some of the documents signed by the defendant in the absence of her husband and son. It is further stated that in fact the son of the defendant who was an unemployed automobile engineer intended to start a business from the suit premises. Both the learned lower Courts rejected the plea of the defendant and decreed the suit.
3. In such circumstances, it appears from the record that the substantial question of law was formulated at the time of admission of appeal and the same is as below:
Whether the plaintiff/respondent having failed to prove the creation of tenancy in terms of his pleadings, and thus there has been variance between the pleading and proof, the learned Courts below erred in law in decreeing the suit.
4. Mr. Bhaskar Ghosh, learned counsel appearing with Mr. Amalendu Sen, learned counsel for the appellant/defendant/landlady submits before me that the plaintiff could not furnish even a single receipt before the learned trial Court and only one receipt dated 15.1.1990 for Rs. 30/- was produced by the plaintiff in order to obtain the licence. Mr. Ghosh has drawn my attention to the agreement dated 26.02.1990 (exhibit A). According to the plaint case the rent was Rs; 250/- per month although the rent receipt to that extent was only for Rs. 30/- and that too in connection with holding No. 153 although the suit premises is holding No. 28/22. Mr. Ghosh then argues before me that the agreement dated 26.2.1990 was for five years and so it can be taken that it was a lease agreement but as it was not registered in terms of provisions of Section 49 of the Registration Act, the said instrument is a void one. Mr. Ghosh has also drawn my attention to the provisions of Section 107 of the Transfer of Property Act in this connection and tries to impress upon me as regards the necessity for registration. Mr. Ghosh has then argued before me that the plaintiff could not prove the payment and acceptance of rent and so the suit was liable to be dismissed.
5. Mr. Ghosh has then referred to the ratio decided in the case of Parekh Brothers v. Kartick Chandra Saha & Ors. in which it was, inter alia, held that the affidavit filed with an application under Section 17 of the West Bengal Premises Tenancy Act but not tendered in evidence in the suit for eviction could not be admitted in evidence in appeal against the decree for eviction. In this connection Mr. Ghosh has pointed out to me that the plaintiff as PW 1 admitted in his evidence that no rent receipt was issued, although the rent was paid by him and in such case the relief available to the plaintiff was to file an application under Section 25(2) of the West Bengal Premises Tenancy Act. Thus Mr. Ghosh has referred to the ratio decided in the case of Mrs. Juthika Basu. & Ors. v. Lt. Col. A.N. Sharma (1992, 1 CLJ 174) in which it was inter alia held that when the landlord refused to issue rent receipts despite receiving rent, the remedy of the tenants lies in invoking the provisions of Section 25(2) of the West Bengal Premises Tenancy Act.
6. Mr. Asoke Banerjee, learned counsel appearing with Mr. Susovan Sengupta, learned advocate for the respondent/plaintiff submits before me that the plaintiff took all steps for the purpose of starting business after the agreement of tenancy was executed and the landlady had all along cooperated with the plaintiff and accordingly the receipt of Rs. 30/- (Ext.l) was issued by her. Mr. Banerjee further argued before me that on showing that rent receipt the plaintiff got the electric connection, trade licence etc. It is further pointed out by Mr. Banerjee that before taking loan from the bank, there was an enquiry from the bank and thereafter the loan was sanctioned. As regards the discrepancy of holding number appearing in Ext. 1 it is submitted by Mr. Banerjee that the said receipt was obtained only for the purpose of getting trade licence, electric connection etc. Mr. Banerjee then submits before me that the defence case of misrepresentation is itself a question of fact and both the Courts rejected the same. Mr. Banerjee has then argued that an instrument creating tenancy under the West Bengal Premises Tenancy Act need not be registered and even such tenancy can be created orally. It is also submitted by him that if the intention is to create a lease and that is for 21 years or more than it is required to be registered. In this connection Mr. Banerjee has referred to the ratio decided in the case of Anthony v. K.C. Ittoop & Sons and Ors. . In the said case the Hon’ble Apex Court appears to have discussed the provisions of Section 105 and Section 107 of the Transfer of Property Act, Sections 17 and 49 of the Registration Act and ultimately it was held as below:
But the above finding dues not exhaust the scope of the issue whether the appellant is a lessee of the building. A lease of immovable property is defined in Section 105 of the Transfer of Property Act. A transfer of a right to enjoy a property to 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 created. What is mentioned in the three paragraphs of the first part of Section 107 of the Transfer of Property Act are only the different modes of how leases are created. The first para has been extracted above and it deals with the mode of creating the particular kinds of leases mentioned therein. The third para can be read along with the above as it contains a condition to be complied with if the parties choose to create a lease as per a registered instrument mentioned therein. All other leases, if created, necessarily fall within the ambit of the second para. Thus, dehors the instrument parties can create a lease as envisaged in the second para of Section 107 which reads thus:
“All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.”
7. Mr. Banerjee then argues that the plaintiff did of course not approach the Rent Controller to invoke the provisions of Section 25(2) of the West Bengal Premises Tenancy Act, but at the same time there is no bar to approach to civil Court.
8. In reply to the argument made by the learned advocate for the respondent Mr. Ghosh submits that the ratio decided in the case of Anthony (supra) rather supports the case of the appellant. Mr. Ghosh has then referred to the ratio decided in the case of Bajaj Auto Ltd. v. Behari Lal Kohli which was relied on in the case of Anthony (supra) and tries to impress upon me that the effect of non-registration of the document has also been discussed in the judgment passed in the case of Anthony (supra). Mr. Ghosh then submits that the argument of the learned advocate for the respondent that even the oral agreement is permissible for creating tenancy the West Bengal Premises Tenancy Act does hot stand in view of the fact that both the Courts below relied on the unregistered agreement of lease as an instrument of creation of tenancy.
9. In course of argument nothing has been agitated before me as regards the inconsistency between the pleadings and the evidence. Rather it is the consistent case of the plaintiff in the plaint that with the intention of starting a grill business the plaintiff took the suit premises from the landlady. Now it appears from the Ext. 1, that it is a printed instrument for realising rent for dwelling house/shop room. It is in torn condition. However, against the printed column for the name of the tenant the name of the plaintiff was written and the amount of rent was shown as Rs. 30/-. The said receipt was signed by the defendant over the revenue stamp. The date of the said rent receipt is shown as 15.1.1990. The plaintiff produced the SSI Registration Certificate (Ext. 2), trade licence (Ext. 2a) and also the deposit of total sum of Rs. 3570/- with the West Bengal State Electricity Board for the purpose of starting the business (Ext. 5) and thereafter a sum of Rs. 801/- (Ext. 5a) with the same Board and some other documents issued by the State Electricity Board. The plaintiff also appears to have filed the letter from the Punjab National Bank showing the sanction of loan for the purpose of manufacturing of grill. The plaintiff filed many other documents for the purpose. The agreement in question (Ext. A) in a stamp paper of Rs. 20/-bears the caption as agreement for monthly rent of shop room between the parties to the suit. The stamp paper appears to have been purchased in the name of the landlady and it was signed by both the parties. What is striking in this regard is that although beside the stamp paper there are three other pages of the purported agreement, but only in one place of that stamp paper there are signatures of the parties and neither of the parties appear to have put the signatures on any other three pages of the purported agreement. This fact goes to support the case of misrepresentation taken by the defendant and there is absolutely no explanation as to why the other pages of that agreement remain unsigned. However, it further appears from the said agreement that one Panchu Gopal Dutta signed as the witness of the agreement but he was also not examined before the trial Court as a witness.
10. The argument of the learned advocate for the respondent that even the oral agreement in tenancy is permissible under the West Bengal Premises Tenancy Act does not appear to have been taken before either of the learned lower Courts and as such this is absolutely a new ground taken in this second appeal which is not permissible under the provisions of law. Furthermore, although it is the specific and consistent case of the plaintiff that the quantum of rent was fixed at Rs. 250/- per month the plaintiff could not establish any rent receipt before the learned trial Court and as such it has become clear that the pleadings of the plaintiffs in the plaint is not supported pro tanto by adducing any evidence on that count. And this attracts the ratio decided in the case of Parekh Brothers (supra) as referred to by the learned advocate for the appellant.
11. The learned Munsif appears to have traversed the other incidental circumstances like sanction of loan, granting of trade licence, deposits for electric connection so on and so forth and on the basis of those circumstances came to the conclusion that there was a valid tenancy created in favour of the plaintiff. Tenancy is a right created under the statutory provisions and in order to satisfy such statutory provisions under the West Bengal Premises Tenancy Act, as in the instant case, the plaintiff/tenant is required to establish the compliance such statutory provisions. Who is a tenant under the West Bengal Premises Tenancy Act? In this connection the Hon’ble Apex Court in the case of H.R. Rikhy v. New Delhi Municipality observed that unless there is a valid demise, there is no transfer of interest in favour of tenant and the money paid in pursuance of such transfer even if described as rent, cannot be called rent. It was further held in that case that payment of rent does not create a relationship of landlord and tenant that the question must depend upon whether or not there was a relationship of landlord and tenant in the sense that there was a transfer of interest by the landlord in favour of the tenant. The surrounding circumstances of the instant case on which the learnd trial Judge placed reliance bear all the indications very akin to the creation of tenancy but for want of the vital proof of payment and acceptance of rent and taking possession of tenancy the plaintiff cannot be treated as a tenant under the West Bengal Premises Tenancy Act.
12. Now, if the question of registration of the Ext. A is kept aside in terms of the ratio decided in the case of Anthony (supra) as referred to by the learned advocate for the respondent, the said agreement is defective inasmuch as all the other pages of the agreement do not bear the signature of any of the parties. Thus cumulative effect before me is this that there is neither any rent receipt to prove the case of the plaintiff that he took the suit premises for a monthly rent Rs. 250/- nor the purported written agreement appears to be valid by any test nor there was any case of oral agreement before the learned lower Courts nor that the plaintiff got possession of tenancy. Then again, the plaintiff did not appear to have discharged his statutory obligation by invoking the provisions of Section 25(2) of the West Bengal Premises Tenancy Act and in the facts and circumstances of the present case it was not cured in the suit filed before the trial Court. Accordingly, the appeal succeeds.
The appeal is thus allowed on contest without any order as to costs. The judgment and decree passed by both the Courts below are hereby set aside. The suit is dismissed.
A copy of this judgment along with the LCR be sent down to the learned lower Courts forthwith.