L. Narasimha Reddy, J.
1. These two second appeals are filed by the Defendants 1 to 3 in O.S. No. 610 of 1997, on the file of the II Senior Civil Judge, City Civil Court, Hyderabad. The parties to both the second appeals are common. The Respondents 1 and 2 filed the suit, for the relief of delivery of vacant possession of the plaint schedule property, on payment of the value of the suit building, to be ascertained by a Commissioner, that may be appointed by the Court. They also claimed mense profits, at the rate of Rs. 35/- per sq. feet, per month, from the date of filing the suit, till the date of delivery of possession. Respondents 4 and 5 in the appeals were impleaded as Defendants 4 and 5, in the suit. For the sake of convenience, the parties are referred to, as arrayed in the suit.
2. The plaintiffs are the owners of premises bearing Door No. 3-6-137, Himayatnagar, Hyderabad, admeasuring 1,612 sq. yards, with an old building, thereon. The 1st defendant is an Educational Society and Defendants 2 and 3 are its members. With a view to establish and run a Junior College in the said premises, Defendants 1 to 3 (for short 'the defendants') approached the plaintiffs. Both of them agreed on certain terms, such as, that the suit schedule property shall be leased for a period of 15 years, with effect from 2-10-1987 to the defendants, that a building shall be constructed by the defendants, with their own funds, in accordance with the plan to be sanctioned in the name of the plaintiffs by the Municipal Corporation of Hyderabad, that the defendants shall deposit a sum of Rs. 50,000/-, and that the monthly rent shall be Rs. 7,000/-. Initially, an agreement was entered into on 11-8-1986. Thereafter, a lease deed was executed on 2-10-1987, but it was not registered.
3. The defendants were inducted into possession and construction was undertaken. Few years thereafter, notices were exchanged between the parties, in the matter of payment of certain additional amounts, as advance to the plaintiffs. Alleging that the defendants constructed large halls in the 5th floor of the building, without permission from the Municipal Corporation of Hyderabad, failed to demolish an old structure, which too was a condition imposed by the Municipal Corporation, for undertaking new construction, and that they have subleased part of the premises in favour of Defendants 4 and 5, the plaintiffs got issued legal notice dated 20-2-1997. The defendants, in turn, issued a reply dated 3-3-1997, denying the allegations contained in the notice. Not being satisfied with the reply issued by the defendants, the plaintiffs filed the suit for the reliefs referred to above.
4. On behalf of the defendants, a common written statement was filed. It was alleged that on their own accord, the plaintiffs have agreed to extend the period of lease till the year 2017, beyond the initial period of 15 years, and received a sum of Rs. 6,00,000 as advance. As regards the alleged deviation from the plan, they pleaded that the plaintiffs themselves filed a suit in the Court of X Assistant Judge, City Civil Court, Hyderabad, and obtained a decree for regularization of a minor deviation. It is stated that while extending the period of lease, several conditions, such as, increase of the rent by 15% for every span of 5 years, was agreed to. They flatly denied the sublease of the premises in favour of the Defendants 4 and 5. They contended that the plaintiffs are in the habit of making unreasonable and unjust demands for payment of huge amounts, without any basis, and that the suit is not maintainable, since it is filed before the expiry of agreed period. The rate at which the mesne profits were claimed is stated to be excessive and unreasonable.
5. During the pendency of the suit, Defendant No. 4 died and his legal representatives were not brought on record. Defendant No. 5 was set ex parte.
6. Through its judgment dated 20-1-2003, the trial Court decreed the suit, directing that the plaintiffs shall pay a sum of Rs. 30,00,000/- towards cost of construction, within three months, from the date of decree, and refund within three months, all the amounts received by the plaintiffs as advance, and thereupon, the defendants shall deliver vacant possession of the premises. It awarded mesne profits at the rate of Rs. 8/- per sq. feet, per month, over an area of 15,000 sq. feet from the date of filing of the suit, till the date of delivery of possession. A direction was issued as to adjustment of Rs. 6,00,000/-, at the rate of Rs. 4,000/- per month, with effect from 2-10-1992 till 1-4-1997.
7. The defendants filed A.S. No. 115 of 2003 in the Court of Chief Judge, City Civil Court, Hyderabad, aggrieved by the decree passed by the trial Court. The plaintiffs, on the other hand, filed A.S. No. 295 of 2003, in the same Court, aggrieved by the decree passed by the trial Court, insofar as it awarded mesne profits at the rate of Rs. 8/- per sq. feet, as against their claim of Rs. 35/- per sq. feet, over a larger extent. Through a common judgment dated 13-10-2003, the lower appellate Court dismissed A.S. No. 115 of 2003. It allowed A.S. No. 295 of 2003, directing that the area, on which the mesne profits shall be paid, shall be 19,500 sq. feet, as against 15,000 sq. feet, mentioned in the decree passed by the trial Court.
8. Learned Advocate-General, appearing for the defendants, submits that the suit itself was not maintainable, since there existed an agreement between the parties that the lease shall be in force, till the year 2017. He contends that the defendants were ready and willing to perform their part of the contract, for execution of lease deed, and that they were not liable to be evicted from the premises. He contends that the findings recorded by the Courts below, on the allegations as to making of unauthorized constructions, or failure to demolish the old structure, are without any basis. He submits that the plaintiffs got the deviations regularized, through process of compounding, by filing a suit. About the plea as to subleasing of the premises, the learned Advocate-General submits that there was absolutely no truth in it, and the Courts below have proceeded on assumptions.
9. Serious objection is taken to the decree passed by the trial Court, straightaway permitting the plaintiffs to deposit an imaginary sum of Rs. 30,00,000/-, even though the prayer in the suit is to the effect that the cost of construction must be assessed by a competent person, and that the possession be delivered after the amount so ascertained, is paid. It is also urged that the decree for mesne profits, in respect of building, which was admittedly constructed by the defendants, without directing any enquiry, as required under Order XX Rule 12 CPC, cannot be sustained. He relied upon several precedents, in support of his contention.
10. Sri Vedula Venkataramana, learned Counsel for the plaintiffs, on the other hand, submits that admittedly there did not exist any registered lease deeds, and the defendants cannot rely upon any condition, incorporated in an unregistered document. He contends that the plea of part performance was not at all raised in the written statement, and even otherwise, the defendants are not entitled for protection, thereunder. Learned Counsel further submits that, even if the benefit under Section 53-A of the Transfer of Property Act (for short 'the Act') is to be extended, the fact remains that the very document, on which reliance is placed, provided for eviction on payment of cost of construction, and thereby, it became permissible for the plaintiffs to seek eviction.
11. Learned Counsel further points out that the plaintiffs have paid the amount of Rs. 30,00,000/- which was stated by the defendants themselves, as the cost of construction, and that it was not even pointed out, by the defendants that there is any discrepancy about it. He further contends that when clear evidence exists on record, it is not necessary for a Civil Court to direct enquiry into mesne profits, and it can stipulate the amount, straightaway. He too relied upon a catena of decisions, to buttress his contentions.
12. The transaction between the parties has several factual and legal controversies. Taking the pleadings into account, the trial Court framed the following issues:
(1) Whether the plaintiffs are entitled for the ejectment of the defendants and delivery of vacant possession of the suit schedule property?
(2) Whether the plaintiff is entitled for mesne profits at the rate of Rs. 8,400/- p.m., for the period from 2-4-1997 to 8-4-1997 amounting to Rs. 1960/-?
(3) Whether the plaintiff is entitled for future mesne profits pendente lite until delivery of possession?
(4) Whether the plaintiffs had received Rs. 6 lakhs with regard to extension of lease from 2002 to 2017 from the defendants, as pleaded by D-1 to D-4 in their written statement?
(5) Whether the notice dated 20-2-1997 issued by the plaintiffs is not proper and valid?
(6) Whether the plaintiffs are entitled for future mesne profits at Rs. 35/- per SFT from the date of the suit till delivery of possession of the suit schedule property?
(Additional issue framed on 9-8-2001)
13. On behalf of the plaintiffs, PWs. 1 and 2 were examined and Exs. A-1 to A-7 were filed. On behalf of the defendants, DW-1 was examined and Exs. B-1 to B-13 were filed. Exs. X-1 and X-2, which are lease deeds, in relation to different properties, were taken on record, in the context of comparison of the rental value.
14. As observed earlier, the defendants on the one hand, and the plaintiffs, on the other hand, filed two separate appeals, and both of them were heard and disposed of together. The lower appellate Court framed two points, viz;
(1) Whether the plaintiffs are entitled for eviction of the suit schedule property till 2017?
(2) Whether the mesne profits as awarded by the trial Court are proper.
Both the points were answered against the defendants.
15. S.A. No. 1293 of 2003 was admitted on 2-4-2004, on substantial questions of law framed in Paragraphs A to J, covering several aspects, such as, whether benefit under Section 53-A of the Act is available to the defendants, whether the lease can be said to be from month to month, whether there was any violation of conditions of the unregistered lease deed dated 2-10-1987, whether Clause 10 of the said lease agreement, marked as Ex. B-12, was capable of being pressed into service, and finally, whether the fixation of mesne profits was legal and proper.
16. The other second appeal was admitted, without pointing any independent questions of law, but only in view of the fact that another S.A. No. 1293 of 2005 already admitted against the common judgment.
17. In view of the extensive submissions made on behalf of the parties, the following questions arise for consideration:
(a) Whether there existed a valid lease in favour of the defendants, up to the year 2017?
(b) Whether the defendants are entitled for the benefit under Section 53-A of the Act?
(c) Whether the decree passed in the suit, insofar as it relates to the deposit of Rs. 30,00,000/- as compensation, for the building, accords with the prayer in the suit, or suffers from any infirmity?
(d) Whether the Courts below were justified in passing a decree for mesne profits, without ordering any enquiry into it?
18. The first two question are interrelated. Before commencing the discussion on these aspects, it needs to be observed that much of the controversy and uncertainty has resulted on account of an adventure, on the part of the plaintiff, who is said to be a Medical Practitioner in drafting Ex. B-12 and B-13. The form and content of the documents are, as perfect as a medical prescription, by legal practitioner can be.
19. The defendants came to be inducted into the possession of the property in the year 1987. It was agreed between the parties that the property would be leased for a period of 15 years, on a monthly rent of Rs. 7,000/-. The defendants were permitted to undertake construction in the premises, in accordance with the sanctioned plan, to be obtained by the plaintiffs. The possession was delivered, and the construction, as contemplated by the parties, was brought about. Though the terms of the transaction were reduced into writing in a document dated 2-10-1987, marked as Ex. B-12, and the agreed period of lease was beyond one year, and it was not registered, as required under Section 107 of the Act, it is not necessary to refer to certain developments that have taken place, which include exchange of notices, with allegation as to contravention of sanction plan, etc. 5 years after Ex. B-12 was executed, the parties agreed for further extension up to 2017, through a separate document dated 1-6-1992, marked as Ex. B-13. Even this document was not registered.
20. Section 107 of the Act clearly mandates that lease of an immovable property, for a period exceeding one year, can be brought into existence, only through a registered document. Unless registered, the lease deeds, referable to Section 107 of the Act, cannot be received in evidence. The trial Court initially refused to receive Exs. B-12 and B-13, in evidence. In a revision, preferred to this Court, it was held that the said documents can be received in evidence, in view of proviso to Section 49 of the Registration Act, and that they can be relied upon, in the context of the plea under Section 53-A of the Act.
21. Once the Act mandates that a lease, beyond a period of one year, can be brought about, only through a registered document, it is difficult to accept the contention of the defendants that Exs. B-12 and B-13, which are admittedly unregistered documents, have brought about a lease, to be in force, up to the year 2017.
22. It is urged on behalf of the defendants that Exs. B-12 and B-13 which were initially not received in evidence by the trial Court were accepted in pursuance of a direction issued by this Court, specifically for the purpose of Section 53-A, and in that view of the matter, the defendants cannot be denied the benefit of the same. Reliance is placed upon the judgment of the Supreme Court in Motilal Jain v. Ramdasi Devi : AIR2000SC2408 , and certain other decisions, and it is contended that the pleadings, as a whole, must be read, and if the intention of the party can be culled out, as to his readiness and willingness to perform his part of the obligation, the plea under Section 53-A can be accepted, even if it is not specifically raised. It is also stated that virtually nothing left to be performed by the defendants for completion of the contract.
23. On the other hand, the plaintiffs plead that when Exs. B-12 and B-13 purported to bring about the transaction of lease, they cannot be treated as agreements, that too, in the absence of specific plea under Section 53-A. Placing reliance upon the judgment of Privy Council in Probodh Kumar Das v. Dantmara Tea Co. Ltd. AIR 1940 PC 1, and certain other judgments, it is contended that, even where an agreement of sale exists, it only imposes statutory bar on the transferor and it confers no active title upon the transferee.
24. The plea based on Section 53-A of the Act, in relation to leases; has its own typical features, when compared to a situation, where it is pressed into service in case of a sale transaction. The question of transferor, in a transaction of sale, resuming the possession, does not arise, whether the sale had already taken place, or can be brought about through a decree for specific performance. The transferor on a lease, on the other hand, is always vested with the right to resume possession, whether it is on account of expiry of the agreed period of lease, or after termination of the lease, in accordance with law. While resumption of possession from a transferee in the sale is never treated as the part of that transaction, a lease always entails in resumption of possession from the lessee. The uncertainty, if at all; is only as to the point of time, but not about the obligation of the lessee to vacate the premises. It is for this reason, that the connotation of Section 53-A differs, when it is pressed into the transaction of sale, on the one hand, and lease, on the other hand.
25. In case of sale, the person, inducted into possession of property, under of an agreement, can insist that he is entitled to remain in possession of the property, to the complete inclusion of the transferor, provided he expresses his readiness and willingness to perform his part of the contract, and thereby, avail the benefit of Section 53-A. However, a person in possession of immovable property, under an agreement of lease, cannot insist that he is not liable to be evicted at all, by taking recourse to the plea of Section 53-A. On the extension of such benefit, the maximum that can happen is that, the transaction of lease, which hitherto was incomplete, can be brought about. Even where a lease in accordance with Section 107 of the Act emerges through specific performance, the obligation of the lessee to be evicted, does not cease. It is no doubt true, that the circumstances, under which a lessee can be evicted, would differ, from case to case, depending on the terms of lease. If no definite period of lease is stipulated, Section 106 can be pressed into service by the lessor, and if the lease is for a specific period, Section 111 of the Act would govern the field.
26. The terms of a lease can be those contained in the lease deed, or the general terms prescribed under Chapter V of the Transfer of Property Act. Even if Exs. B-12 and B-13 are to be treated as agreements of lease, they can be looked into only for collateral purposes in a transaction of lease. Except possession, no other purpose can be treated as collateral to the transaction of a lease. The other terms, such as duration of lease, mutual obligation as to renewal, fixation, or enhancement of rent etc., cannot be treated as collateral. Such terms can be contained only in a lease deed, which accords with Section 107.
27. Another aspect of the matter is that, if for any reason, all the terms and conditions contained in Exs. B-12 and B-13 can be looked into, notwithstanding the fact that the deeds are not registered, it becomes equally permissible for the plaintiffs to rely upon Clause (10), of Ex. B-12, which provided for premature eviction. Therefore, it has to be held that:
(a) Exs. B-12 and B-13 did not bring about any lease, as provided for under the Act; and
(b) that the defendants cannot resist their eviction by taking the plea under Section 53-A of the Act.
28. Now comes question (c). With the permission of the plaintiffs, the defendants constructed a building on the suit land with their own funds. There is no disagreement between the parties that, as and when the defendants vacate the premises, the plaintiffs shall be under obligation to pay the cost of the building, to be assessed by a technical person. It is necessary to extract the prayer in the suit, to understand the nature of relief claimed by the plaintiffs, in the context of delivery of possession of the building and the assessment of the value thereof. It reads as under:
(1) It is therefore prayed that the defendants, their servants, agents and representatives be ordered to deliver vacant possession of plaint schedule property to the plaintiffs, simultaneously on the plaintiffs paying to Defendant No. 1, the value of the additional construction lawfully made by Defendant No. 1 in the said property, the value thereof to be assessed by Competent Authority (appointed by the Court) like experienced Civil Engineer or Contractor, together with the refund by the plaintiffs to Defendant No. 1 of any surplus amount lying to the credit of Defendant No. 1 out of sum of Rs. 6 lakhs advanced by Defendant No. 1 and Rs. 50,000/- as deposit, after adjustment therefrom in the rents already paid and the mesne profits claimed herein.
(2) That the Defendants 1 to 5 be ordered to pay mesne profits to plaintiffs at the rate of Rs. 8,400/- per month (or Rs. 280/-per day) for the period 2-4-1997 to 84-1997, amounting to Rs. 1,960/-
(3) That the Defendants 1 to 5 be further directed to pay plaintiffs future mesne profits @ Rs. 30,000/- per month pendente lite until delivery of vacant possession.
(4) Costs of the suit be ordered paid by Defendants 1 to 5 to plaintiffs.
(5) Such other reliefs be granted which may be just and proper.
29. It is very clear that the plaintiffs prayed for appointment of an experienced Civil Engineer, or Contractor, for assessment of the value of the building, so that the amount so assessed, can be paid to the defendants. They also expressed their willingness for certain adjustments. Even if the suit were to have been decreed, as prayed for, without any resistance from the defendants, the maximum that the trial Court could have done was to appoint a Civil Engineer, or Contractor, for assessment of the value of the building, and to pass a decree against the defendants for payment of the value of the building that may be so assessed. Any other course was possible, if only there was agreement between the parties, as to such value. The matter was so clear that the trial Court did not feel the necessity to frame an issue on the same. It, however, proceeded to fix the value of the building at Rs. 30 lakhs and passed the decree accordingly. The trial Court straightaway took an averment in the written-statement as to the alleged expenditure, incurred for construction of the building, and treated it as final. The relevant portion of the judgment of the trial Court reads as under:
Para-41 : The learned Counsel for Defendants 1 to 3 contended the implementation with regard to valuation of the building is very vague, as Clause 10 contemplates as assessed by Competent Authority without defining who is the said Competent Authority. However, this does not present with any problem because the Governmental approved valuer can be appointed to assess the cost of the additional construction made by D-1 society. Appointment of the Governmental approved valuer is obviated in this case because in the written statement, Defendants 1 to 3 in Paras 5 and 16 stated that they have incurred Rs. 30 lakhs towards cost of additional construction. Even in the evidence, the first plaintiff as DW-1 has stated that the cost of additional construction is about Rs. 30 lakhs. This is also stated that the third defendant who is examined as DW-1. Therefore, when there is agreement between the parties as to the exact cost of additional construction made by D-1, it cannot be said term of the agreement cannot be implemented effectively....
30. Even assuming that the defendants have stated that they incurred Rs. 30 lakhs for making the construction, it is impermissible to take such a figure, as final, particularly when the plaintiffs did not choose to amend the plaint, together with the corresponding portion of the prayer. Therefore, the finding of the trial Court, in this regard, is palpably illegal and contrary to the settled procedure.
31. Now comes the last question, relating to the decree passed for mesne profits. Clauses (2) and (3) of the prayer in the suit relate to this relief. The mesne profits were claimed under two heads : The first part of it related to a period of six days, amounting to Rs. 1,960/-. The second part is for the period subsequent to 8-4-1997. The Court fee was paid only for the first part of the claim. There is an endorsement in the plaint, that the amount of mesne profits for the subsequent period is incapable of valuation, and the plaintiffs propose to pay the Court fee, as per Section 41 of the A.P. Court Fee and Suits Valuation Act. The evidence adduced in this regard, was hardly of any use. Several uncertainties existed in the matter. The trial Court ought to have taken recourse to Rule 12 of Order 20. Rule 12 reads as under:
Rule 12 Order 20 : Decree for possession and mesne profits. - (1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree.
a) for the possession of the property;
[(b) for the rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent;
ba) for the mesne profits or directing an inquiry as to such mesne profits;]
b) directing an inquiry as to rent or mesne profits from the institution of the suit until,-
(i) the delivery of possession to the decree-holder,
(ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or
(iii) the expiration of three years from the date of the decree, whichever event first occurs.
(2) Where an inquiry is directed under Clause (b) or Clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry.
From a perusal of this, the following things become clear:
(1) A decree can straightaway be passed for the rents, that have accrued up to the date of filing of the suit, and if there is any uncertainty, Court can direct an inquiry into this aspect [Clause (b)].
(2) A decree can also ensue for mesne profits, as distinguished from rents, or an enquiry into such profits can be ordered [(Clause ba)]. The mesne profits, that can be dealt with under Clause [(ba)] are obviously those, up to the date of filing of the suit, as would be evident from Clause (c).
(3) A decree as regards mesne profits for the period subsequent to the institution of the suit, would entail only after an inquiry, as is evident from Sub-rule (2) of Rule 12.
32. The Courts below have unfortunately omitted to take these aspects into account, and have straightaway passed a decree for mesne profits for the period subsequent to the date of filing of the suit. Therefore, there is clear infraction of the mandatory procedure prescribed under C.P.C. The decree passed by the trial Court, as modified by the lower appellate Court for mesne profits; accordingly deserves to be set aside.
33. To sum up, the plaintiffs would be entitled for a decree for eviction of the defendants, but as a condition precedent, the value of the building must be assessed by appointing a Chartered Engineer, and so assessed, must be paid. The cost of the building, the plaintiffs are entitled for a decree, for the rents up to the date of filing of the suit, and for subsequent period, it shall be open to them to file an application for appointment of a Commissioner, for ascertainment of the same. Since the plaintiffs are running an Educational Institution, they deserve to be granted reasonable time.
34. Accordingly, the second appeals are allowed in part, and the decrees under appeals are set aside. In their place, the following decree shall ensue:
(a) The trial Court shall appoint a Commissioner, who shall be a Civil Engineer, or Contractor, for the purpose of ascertaining the value of the building, constructed by the Defendants 1 and 2, on the plaint schedule property.
(b) The defendants shall vacate the suit schedule premises, on deposit of cost of the building by the plaintiffs as assessed under Clause (a), or by the end of May 2007, whichever is later.
(c) There shall be a decree for a sum of Rs. 1,960/- representing mesne profits, up to the date of filing of the suit.
(d) It shall be open to the plaintiffs to file an application for ascertainment of mesne profits for the suit schedule property, for the period, from the date of filing of the suit, till the date of recovery of possession. On such ascertainment, a decree for the said amount shall ensue.
(e) The parties shall bear their own costs.