P L D 1952 Dacca 283 (PLP)

It is true that the proviso to section 49 of the Registration Act allows an unregistered deed which is required to be registered to be used as evidence but the use is limited. It can be used as evidence of a contract in a suit for specific per formance (that is not the case here) or as evidence of part performance of a contract for the purpose of section 53‑A of the Transfer of Property Act. Aziz Ahmad and others v. Alauddin Ahmad A I R 1933 Pat. 485 and Fazel Sheikh y. Keramuddin. Sheikh 6 C W N 916 ref. Tapendra Kumar Pal for Appellant. Birendra Kumar De and S. d. H. Sekandar for Respondent. IBRAHIM, J.‑

The plaintiff appellant instituted this suit for ejectment of the respondent from suit lands on the allega tion that towards the end of the year 1342 B. S. the respondent was given possession as a licensee and when asked in Falgoon in 1346 B. S. to vacate the land the respondent refused to do so. The defence of the respondent was that he was inducted under Exh. C, an unregistered deed of lease for a term of 20 years at an annual rent of Rs. 2‑4‑0 and that after taking possession he erected houses having roofs of corrugated iron sheets and that he was entitled to the protection of section 53‑A of the Transfer of Property Act inasmuch as he had performed his part of the contract, namely, that he had paid the entire rent of the 20 years in advance. The Court of first instance found the defence to be true to the extent that the respondent had been inducted under the unregistered deed of lease, Exh. C and that he had erected several houses having roofs of corrugated iron sheets but rejected the contention that the respondent had paid the rent as the alleged. Nevertheless the Court of first instance dismissed the suit holding that the respondent was entitled to the protection of section 53‑A of the Transfer of Property Act. On appeal the learned District Judge concurred in this decision. The plaintiff has preferred the second appeal from the decision of the District Judge. Mr. Tapendra Kumar Pal contends that on the very face of it the respondent cannot resist the suit for eviction in view of the findings of fact of the Courts below. It seems to me that this contention must be conceded. A person who has taken possession under an unregistered lease which under section 107 of the Transfer of Property Act is required to be registered, can protect his possession on the plea of part performance under section 53‑A of the Act provided he fulfils the conditions laid down therein. One of the conditions is that the person seeking the protection has performed or is willing to perform his part of the contract. Respondent's definite defence was that he had already performed his part of the contract by paying the entire rent for 20 years. This defence has failed. Both the Courts below have concurred in the finding that he did not pay the rent as alleged by him. It seems to me clear in these circumstances that the plaintiff must succeed in this suit. Mr. Birendra Kumar De, on behalf of the respondent, has, however, raised the contention that in no event can plaintiff succeed in this suit inasmuch as the status of the respondent is that of a tenant and that he is entitled to notice before eviction. From the plaint it appears and it is not disputed that the respondent was asked to quit. Mr. De's contention is that he was asked to quit as a licensee but was never served with any notice as a tenant. It seems to me that this contention is untenable. It is not clear to my mind that the respondent has the status of a tenant. A lease for 20 years can be created only by a registered deed under section 107 of the Transfer of Property Act. Section 49 of the Registration Act provides amongst other things that no document required by section 17 of the Registration Act or by any provision of the Transfer of Property Act to be registered shall affect any immovable property comprised B therein unless it has been registered. This prohibition clearly means that an unregistered instrument cannot have the effect of creating any interest in the land which can be created by a registered instrument only. The respondent obviously cannot claim any right as a tenant under Exh. C., the unregistered deed of lease. It is true that the proviso to section 49 of the Registration Act allows an unregistered‑deed which is required to be registered to be used as evidence but the use is limited. It can be used as evidence of a contract in a suit for specific performance (that is not the case here) or as evidence of part performance of a contract for the purpose of section 53A of the Transfer of Property Act. That is the limited purpose for which the unregistered deed of lease Exh. C. can be used in this case. It is evidence only to show that the acts done by the parties were done in pursuance of a contract embodied in Exh. C. It cannot be used for the purpose of proving that the respondent acquired any title to this property. If that view were taken it would seriously affect section 107 of the Transfer of Property Act. The very proviso to section 53A is significant. It provides that the rights of a transferee for consideration without notice of the contract or of the part performance thereof shall not be affected by the provisions of this section. That indicates to my mind that the respondent cannot claim any interest in the land under section 53A. A right of tenancy cannot be deter mined by the lessor by transfer of his title. Mr. De refers to two cases in support of his contention. The first is the case of Aziz Ahmad and others v. Alauddin Ahmad A I R 1933 Pat.

485. This was a case of an oral lease and section 53A had no application. It has no bearing so far as this case is concerned. The second is the case of Fazel Sheikh v. Keramuddin Sheikh 6 C W N 9 (

6. This was a case regarding the status of an under raiyat who was inducted into the land tinder a lease registered in contravention of section 85 of the Bengal Tenancy Act which was then in force. This case was decided long before section 53A of the Transfer of Property Act came into force. In my opinion, the suit must be decreed. Accordingly the decrees passed by the Courts below are set aside and the plaintiff's suit is decreed. The respondent will remove the huts within six months from today, on his failure to do so the plaintiff will be entitled to do the same in execution of the decree at respondent's costs. The plaintiff appellant will get his costs throughout. The appeal is allowed as above. Mr. Rohini Benode Rakshit prays on behalf of Mr. De for leave to appeal under clause 15 of the Letters Patent. Con sidering the nature of the case the leave prayed for is granted. A. H. Appeal allowed.