The modes for creating the ‘lease’ under Section 107 are exhaustive and there is no scope for any other construction

Daniyal Qureshi | Symbiosis Law School Pune | 22nd March 2020

Joginder Sharma v. Kulwant Singh Decided on 21.1.2020

Facts 

The appellant in the present case being an objector to the original suit wherein the ownership and the possession was contested between the petitioners and respondents of the original litigation and the through order of the Supreme Court a decree had attained finality in favour of the decree holders being the petitioners and respondent no. 6 to 8. 

The decree ordered possession in favour of the decree holders. However, the objector contended that he had been in uninterrupted possession of the property since 1980 and had regularly paid rent. Therefore, the objector contended that he was a tenant and there was a landlord and tenant relationship between him and the decree holders. Therefore, there was a lease implied under S.107 of the Transfer of Property Act 1882. 

Issue 

1. Whether the appellant has been continuing in possession of property in dispute since 1980 on the basis of a ‘lease’ between the parties, resulting into the relationship of landlord and tenant or not?
2. If yes, what would be the effect thereof on the execution proceedings?

Judgement 

The objector contends that since he was not part of the original suit as such the decree passed under the original litigation in favour of the decree holder cannot dispossess him from the property. 

That the objector being a tenant could only be evicted by the landlord through a petition under S. 13 of East Punjab Urban Rent Restriction Act, 1949. 

No doubt that to seek the protection under S.13 of the Rent Act the objector shall have to prove a landlord-tenant relationship. 

On perusal of records it is reflected that the parties to the original suit from which the decree emanates, had been fighting for the possession of the property since 1975. 

Both the courts below however, have found that the objector has failed to establish his tenancy in law. It was recorded by the Learned Executing Court below that in 1980 the decree Holders were not in possession of the property and the objector was inducted into the possession of the property by the Respondent no. 1 against whom the decree has been passed. 

As to the contention of the Objector that he has been paying rent continuously it is observed that the rent was accepted by the decree holder by order of this court in 1985 to safeguard the interest of the successful party in appeal. The same cannot be construed to imply a tenancy. 

From perusal of S. 107 of the Transfer of Property act there are two modes by which tenancy can be created 

1. ‘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;
2. all other ‘leases’ of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession; and

there is no other method provided for the creation of the ‘lease’ under this section.

It hereby laid down by the Hon’ble High Court that this method of creating lease in law prescribed by this section is exhaustive. That there is no other manner of creating a valid lease. In Manohar Lal v Ganda Singh^[1] the full bench of the court laid down that :

“Under that Section a transfer of a right to enjoy immoveable property for a certain time in consideration of things mentioned in Section 105, T.P. Act, could only be effected either by means of a document executed both by the lessor and the lessee or in case of a lease not exceeding one year or not reserving an yearly rent, also by means of an oral agreement accompanied by delivery of possession. The amended Section 107, Transfer of Property Act, deals with the modes how a tenancy can be created so exhaustively that there is now no scope for the argument that a lease could be created in any manner other than what has been specified in that section.”

In the view of this judgement two it is obvious a registered instrument is optional however, there must be evidence to support an oral agreement accompanied by delivery of possession. The objector has failed to show on record any evidence supporting an actual oral agreement between himself and the decree holder accompanied by delivery of possession. It is also noteworthy that while in the present appeal the objector claims the existence of a month to month basis lease but perusal of his objections before the Learned Execution Court reveals an objection that he paid annual rent. In view of the above evidence the appeal is dismissed.

^[1] ILR 1943 (Lahore) 695