On plain reading of the said provision, I have no hesitation in observing that lease can be said to have been created in respect of an immovable property on year to year basis only by a registered instrument. The said provision further postulates that all other leases of immovable property may be either by a registered instrument or by oral agreement accompanied by delivery of possession. We are concerned with the later situation in the present case. However, the petitioner, in the plaint, has clearly asserted that an oral agreement was arrived at between the parties and the document in question was being relied upon only to buttress the stand that an oral agreement of lease was arrived at between the parties. In other words, the document (Exhibit- 48) is not pressed into service to contend that the same is an agreement of lease. It is only a circumstance relied upon by the petitioner to support his plea in the plaint that an oral agreement of lease was arrived at between the parties in respect of the suit premises. From the assertions made in the plaint, it is absolutely clear that the petitioner concedes that possession of the suit promises was not accompanied along with the oral agreement arrived at between the parties on 23rd March, 1978. On the other hand, the requirement, in law, by virtue of section 107 of Transfer of Property Act, particularly the second proviso thereof, is that if the parties enter into an oral agreement of lease, then it should be accompanied by delivery of possession. Even assuming that there was an oral agreement between the parties, it was not accompanied by delivery of possession; and, therefore, such a transaction, in my view, cannot be classified as lease within the meaning of section 105 read with section 107 of the Act. However, such a transaction would be only in the realm of agreement to create lease and not agreement of lease itself. It is pertinent to note that there is nothing on record to indicate that the State Government has issued any notification in terms of proviso to section 107 that lease may be unregistered instrument or by oral agreement without delivery of possession. In absence of such a notification, the rigours of second proviso of section 107, mandating that the oral agreement shall be accompanied by delivery of possession for entering into an agreement of lease, apply with full force. In which case, it is not possible to countenance the plea that the transaction in question qualifications the requirement of a lease. Resultantly, it is not possible to assume in law that there was any concluded contract of lease between the parties which created relationship of landlord and tenant in respect of the suit premises. A fortiori, the suit would then be in the nature of claim for specific performance and the same would be outside the scope of jurisdiction of the Rent Court. Section 28 of the Bombay Rent Act clearly postulates that the suit or proceeding between the landlord and tenant should be relating to the recovery of rent or possession of any premises. It presupposes that there should be existing relationship of landlord and tenant between the parties in respect of the suit premises. In the present case, since there was no concluded contract of lease, it is not possible to hold that the relationship of landlord and tenant was already created between the parties so as to invoke the jurisdiction of the Rent Court.
IN THE HIGH COURT OF BOMBAY
Writ Petition No. 3989 of 1991
Decided On: 23.02.2001
Sudhakar Pralhad Phagade Vs. Subhash Mahadeo Tokekar and Ors.
Hon'ble Judges/Coram:
A.M. Khanwilkar, J.
Citation: 2001(2) MHLJ730
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