N.K. Das, J.
1. The unsuccessful plaintiff has preferred this appeal against the decision dismissing his suit for realisation of arrears of house rent from the defendant in respect of the house situated in Cuttack town bearing holding No. 431 in ward No. 15 of Cuttack Municipality. The house is situated at Badhei Sahi, Buxi Bazar.
2. Plaintiff's case is that the is the owner of the house and defendant is a monthly tenant under him in respect of the house on a monthly rent of Rs. 400/-. The defendant defaulted payment of the house rent from May, 1973 and hence he filed the suit for recovery of arrears of house rent together with costs and interest on the same.
The case of the defendant is that on 30-11-1960 he was inducted as a tenant in respect of the suit house under the plaintiff for one year on annual rental of Rs. 2,400/-. He was paying rent regularly till 1-3-1966. He was never a monthly tenant under the plaintiff. On 1-3-1966 the plaintiff entered into an oral agreement with the defendant for sale of the house including the surrounding lands for a consideration of Rs. 30,000/-. As the defendant was not ready with the entire consideration money, it was decided that the plaintiff would receive Rs. 200/- towards consideration and Rs. 200/- towards interest every month till the registration of the document- and payments towards consideration would be adjusted at that time. Accordingly, plaintiff gave delivery of possession of the holding. Thereafter, defendant has constructed septic tank latrines and has made other improvements to the building. Towards the later part of 1973, the plaintiff came forward with a demand of Rs. 10,000/- more towards the consideration, but the defendant did not agree. The plaintiff filed one case before the House Rent Controller,Cuttack for eviction of the defendant and hag also filed the present suit.
3. The trial Court has held that there was relationship of landlord and tenant between the plaintiff and the defendant; there is no agreement for monthly payment of Rs. 400/- as rent between the parties; the plea of the defendant about contract to sell the suit house to him is a myth and a cooked up story; and the defendant has not paid arrears of house rent from May, 1973. The trial Court has dismissed the suit as plaintiff has no cause of action, inasmuch as there is no evidence for his claim of house rent at the rate of Rs. 400/- per month, and the suit on that count is not maintainable.
4. There is no dispute between the parties that the defendant was a tenant under the plaintiff in respect of the suit house and the plaintiff was paying municipal tax of the house till the date of the suit. There is also no dispute between the parties that from 1-3-1966, defendant was paying the plaintiff Rs. 400 per month. According to plaintiff, this payment of Rs. 400/- was towards house rent whereas, according to defendant, this payment was partly towards the consideration and partly towards interest, in pursuance of a contract by both of them for sale of the suit house to the defendant. Within this narrow compass, the dispute between the parties rests. When both parties are coming with two different versions, Court has to see which version is acceptable; in other words, which story is supported by materials on record and there is preponderance of probability.
5. I shall take up first the defence case about contract for sale of the- house to the defendant. According to defendant, on 1-3-1966 the plaintiff entered into a contract (oral) with the defendant that he would sell the house to the defendant and plaintiff demanded Rs. 30,000/-, but the defendant had only Rs. 1,500/- with him and as the plaintiff demanded the entire consideration money at a time, defendant was not prepared with the amount. So, it was agreed that defendant would be paying Rs. 200/- per month towards consideration and Rs. 200/-towards interest. It is contended that plaintiff agreed to this term and, accordingly, defendant was paying at the above rate. But from May, 1973 defendant has not made any payment as plaintiff created trouble and demanded more money. It is further contended by the defendantthat after the contract was made he has constructed septic tank, latrines and a Choutara and has also fixed gates considering the house to be his own. In support of the aforesaid contentions, three witnesses have been examined from the side of the defendant; they are defendant himself, one Alia Bux said to be the Cut-tack Manager of the defendant and D. W. 1 who is said to have acted as the mason for constructing the septic tank latrines.
From the evidence of D. W. 2 (defendant), it appears that he has no idea about the construction said to have been made and, according to him, it is D. W. 3 who was looking after the construction. A comparison of the evidence of D. W. 3 with that of D. W. 1 will show that D. W. 1 cannot be said to have acted as a mason for construction of the latrines. His testimony reveals that he has no idea about the plans and he is also not able to give the details of the house in which he says to have worked for constructing latrines. According to D. W. 3, accounts were being maintained by D. W. 2 regarding this construction. But D. W. 2 says that all the accounts were with D. W. 3. D. W. 3 further says that he had some accounts, but the same have been lost in a cyclone. A careful examination of the evidence of D. W. 2 will reveal that all accounts were being maintained at Nayagarh by his accountant named Maheswar. When he is asked to produce the accounts, he says that he is not able to produce such accounts. No documentary material is placed before this Court to show that defendant has made the constructions of latrines and the Choutara. His oral evidence is also not satisfactory.
D. W. 1 says that the Choutara was constructed with foundation for further construction and a marriage ceremony was held on that Choutara; whereas the evidence of other witnesses for the defence clearly belies this version. Therefore, after scrutinising the evidence of the three witnesses examined on behalf of the defendant, I come to the conclusion that the construction said to have been made by the defendant has not been established and the defence version to that effect is not acceptable. The only aspect of the matter raised by Mr. Misra, for the respondent, is that the name of the defendant is to be found in the grill gate fitted to the compound. The plaintiff has stated that he knew it, but he did not raise any objection. As I have already found, the defendant has failedto establish his constructions and, as suchmention of his name on the grill gate isnot of much importance. It is not established when this particular gate was fitted.NO independent witness has been examined to that effect. From the testimonyof D. W. 3, it appears that this grill gatewas purchased from some shop at CollegeSquare, but no further detail is forthcoming as to from whom it was purchasedas he is not definite from which shop itwas purchased. He gives names of twodifferent persons from whom it was purchased.
About the contract for sale of the house, defendant has examined himself and D. W. 3, who is said to be his Cuttack Manager. Admittedly, D. W. 3 does not hold any power of attorney as Manager of the defendant. According to the defendant, the contract took place in one meeting between him and the plaintiff on 1-3-1966. But according to D. W. 3, the talk of contract was going on before-hand and both the parties were bargaining about the price of the property. D. W. 2 says that on 1-3-1966 the plaintiff demanded Rs. 30,000/- but he was not ready with the money and he gave a suggestion that he would pay Rs. 200/- towards consideration and Rs. 200/- towards interest and the payments towards consideration would be adjusted at the time of registration of the document. A comparison of the evidence of D. W. 2 with D. W. 3 on this score would show that they give two different versions. There is no independent witness to corroborate the testimony of D. W. 2 on this point. Further, it appears from the evidence that the defendant did not ascertain or inquire as to why the plaintiff was selling the house and when the question of sale arose, defendant suggested for executing an agreement to which plaintiff did not agree. Besides this, there was no other talk.
It was not decided as to when the consideration amount would be cleared up, nor there was any assessment of interest. When admittedly according to the parties there was a written agreement between them for occupation of the house, it is quite improbable that defendant would agree to purchase the house at such a higher amount and, when he pressed for a document but the plaintiff did not agree, he would go on paying the consideration money month to month without getting a document from the plaintiff to that effect. He has also admitted that he has not issued any registered notice calling upon the plaintiff to execute thesale deed offering the consideration money at any time. It is also highly improbable that when plaintiff was demanding the entire consideration money at a time, he would agree to payment of Rs. 200/-along with interest of the same amount which has not been assessed nor. calculated for any period for sale of the house.
6. Defendant also says that his accounts maintained at Nayagarh would show how the money was being paid. But such accounts which are best evidence have not been produced. Therefore, adverse inference has to be drawn for non-production of such accounts which have a material bearing on the plea of the defendant. About the accounts maintained at Cuttack, according to the defendant, the same were maintained by D. W. 3. But the evidence of D. W. 3 would show that accounts were being maintained by the defendant Defendant has also admitted that he has been maintaining such accounts which would show the accounts of the day prior to the date of his deposition in Court. But when confronted about production of such accounts, the defendant says 'I have not filed that account book in any Court or office. I cannot produce that account book if ordered by Court as that account book is at Nayagarh'. It is contended on behalf of the defendant that as the account book was at Nayagarh, it could not be produced in Court.
This contention is not acceptable. The best possible documentary evidence on be half of the defendant is the accounts which would have proved the truth or otherwise of the defence plea of contract and payment of Rs. 400/- towards the consideration money and interest. It would appear from the evidence of the defendant in para. 23 of his deposition that in spite of the advice of his counsel that an agreement was necessary and though the plaintiff refused when the defendant demanded for an agreement, the defendant went on paying Rs. 400/- per month. This is an important factor against the probability of the defence plea that defendant was paying Rs. 400/- towards the consideration and interest in pursuance of a contract for sale of the house. Accordingly, I hold that the defendant, on whom the onus lies for establishing the contract for sale, has failed to discharge the onus and I agree with the finding of the learned Court below that the story of contract for sale and payment of Rs. 400/-towards consideration and interest is a myth and a cooked up one.
There is another aspect of the story. According to the plaintiff, he was absent on 1-3-1966 from Cuttack as he had been to his village at Rangani. In support of this contention, plaintiff hag examined his agent P. W. 3 who stays at Rangani and has also produced some diaries to show that he was not present at Cuttack on that date. P. W. 7 has also been examined to say that on that date he went to the house of the plaintiff and found that the plaintiff had left for his village. The diaries are challenged by the learned counsel for the respondent on the ground that plaintiff has mentioned timings of different actions during his tour to Rangani; whereas in other entries of the diaries such timings are not mentioned. After going through the diaries, I find that timings have also been mentioned against entries dated 28th April 1963, 5th May 1963, 8th May 1963 and 10th May 1963. Therefore, it cannot be said that for a particular purpose i. e. for putting up a story in this case, the plaintiff has made the entries in the diaries. It is further contended that some pages of the diaries have been stitched subsequently and, as such, they have been manufactured. Plaintiff has flatly denied the suggestion to this effect. His statement is to the effect that the maintains diary regularly and the diaries also show the name of the mason engaged for constructing the latrines about which I will discuss later on.
Simply because in some lines, writings have gone beyond the left margin, it was argued that these diaries have been subsequently manufactured. But looking to the dates in continuity in the diaries would show that there is no variance. In view of the statement of the plaintiff, which I accept to be correct, and in absence of any other material on record, the diaries cannot be said to have been manufactured. P. W. _ 7 hag categorically stated that he went on 1-3-1966 to the plaintiff as his wife was ailing, but he could not find the plaintiff. When the plaintiff came back from his village, he attended the wife of P. W. 7. There is nothing on record to show as to why this witness would perjure himself against the defendant. After going through the evidence of this witness, I am of opinion that he is a reliable witness. It is contended on behalf of the respondent that his statement cannot be believed as diary does not contain visiting the house of P. W. 7 on the relevant date, though names of other patients have been mentioned inthe diary. Unfortunately this fact was not confronted to the plaintiff who might have given plausible explanation for the same. Therefore, relying on the contents of the diaries maintained by the plaintiff in regular course as well as the evidence of P. Ws. 3 and 7, I hold that the plaintiff's story that he was not present on 1-3-1966 at Cuttack is acceptable. This fact lends support to belie the story of contract on that date.
7. The case of the plaintiff is that sometime towards the end of 1965, the rent of the house was enhanced from Rs. 200/- to Rs. 400/-. There is no dispute between the parties that defendant was occupying the house from 1960 at a monthly rent of Rs. 200/-. About enhancement of rent, plaintiff has relied on the testimony of P. Ws. 1, 2 and 5 besides himself as well as the orders passed by the Income-tax Officer and the accounts maintained by him. P. W. 1 was admittedly the washerman of the. plaintiff as well as of the defendant. It was suggested to him that his services were discontinued by the defendant because he lost some clothes which he has denied. Attempts have also been made to establish this fact through D. W. 3 who says that he has no personal knowledge about this. In view of such type of evidence, it cannot be said that P. W. 1 ig inimically disposed towards the defendant P. W. 1 is admittedly a neighbour of the defendant, According to him, he was present when defendant occupied the house first. He was also present when the rent was enhanced as well as subsequent payment of rent at the enhanced rate. P, W. 2 is a witness to the enhancement of rent
According to P. Ws. 1, 2 and 5, Shri Mardagajee Roy who is admittedly the Guru, and on whom the defendant still has confidence, came and settled the matter of enhancement. It is contended on behalf of the respondent that the plaintiff should have examined that Mardagajee Roy to speak about the enhancement of rent. But as would appear from the materials on record as well as from the evidence of D. W. 2 himself, it was for the defendant to examine that Mardagajee Roy when the witnesses on behalf of the plaintiff have categorically named him to have transacted the matter with the plaintiff on behalf of the defendant. The defendant admits that Mardagajee Roy has affection towards him till now and he has confidence in him. It appears from the evidence of D. W. 2 thathe did not take part in this transaction. According to him D. W. 3 was doing everything from the first occupation of his house. When the witnesses of the plaintiff have categorically stated that it was Mardagajee Roy who had settled the matter of enhancement of rent, it was incumbent on the part of the defendant to examine him to deny this fact. Moreover, defendant admittedly has been paying Rs. 400/- from March 1966. P. W. 5 is a member of the High Court Bar and, according to him, he is a friend and well-wisher of both the parties.
He states that about 3 or 4 years back, plaintiff approached him for issuing a notice to the defendant for non-payment of arrears of house rent. He volunteered to settle the matter in a friendly way. Thereafter, he and the plaintiff went to the defendant. From the evidence of this witness, it appears that it was sometime in June or July which fits in with the version of P. W. 8 the plaintiff. This witness has said that so far he remembers, defendant admitted that arrear was towards rent for three months. In his presence, defendant agreed to pay the money in a short time and to vacate the house within six to seven months. There is no suggestion to this witness that he never went to the defendant with the plaintiff. There is no reason why this witness would perjure himself against the defendant who happens to be in friendly terms with both the parties. Defendant has never stated anywhere that he has any ill-feeling with this witness. After going through the evidence of this witness, I find that he is a reliable witness and his statement is acceptable.
8. Plaintiff has produced orders of the Income-tax Officer to show that he was getting house rent at the rate of Rs. 400/- per month. It is contended on behalf of the respondent that in the order which related to the accounting year ending on 31-3-1966, the plaintiff has shown Rs. 4,800/- as rent collected by him. But it would appear on a scrutiny of the assessment orders for the subsequent years that plaintiff has also been assessed on Rs. 4,800/- as house rent. It is contended on behalf of the respondent that P. W. 2 says that he is occupying a house within the compound of the plaintiffs residential building at Kanika Road and pays Rs. 7/-per month to the plaintiff as rent. It transpires from the evidence of the plaintiff that the house at Kanika Road stands in the name of his wife. The fact that plaintiff collects rent from P. W. 2 wouldnot show that, that is also an income of the plaintiff. Besides this, there is no material on record placed on behalf of the defendant that plaintiff has any other house which has been let out besides the suit house. Therefore, the assessment orders cannot be thrown out as unreliable relating to collection of Rs. 4,800/- as rent by the plaintiff from the defendant.
9. Plaintiff has also examined P. Ws. 1 and 4 besides himself in respect of payment of Rs. 800/- towards house rent This is also accompanied by a letter from the defendant which shows that dues of the plaintiff were paid. It is contended on behalf of the respondent that dues meant something else besides house rent. But taking into consideration all surrounding circumstances and evidence on record, the dues mentioned in the letter, it appears, does not mean anything else besides house rent. P. W. 4 who is an independent witness has categorically stated that in his presence the Darwan of the defendant handed over the money and plaintiff granted receipt for the same. After going through the evidence of P. Ws. 1 and 4, I find that there is nothing to disbelieve their testimony.
10. Besides the aforesaid materials on record, plaintiff has also proved the accounts maintained by him along with entries made In his diaries. One entry was challenged by the defendant on the ground that the name of Rusi Samal has been entered on a subsequent date. Besides that I find, on a comparison of the accounts and the diaries, that there are entries in the diaries naming Rusi Samal on the dates stated by the plaintiff himself which fit in with the accounts maintained by him. Comparison of the diaries and accounts would reveal that plaintiff has maintained regular accounts for the constructions made. This is also supported by the testimony of the mason P. W. 6. Several questions were put to this witness about the details of the house and he has successfully given the details. After going through his evidence, I am satisfied that this witness is trustworthy. Considering the aforesaid evidence, both oral and documentary, I come to the conclusion that plaintiff has made the construction of latrines, etc. in the house, but not the defendant.
From the evidence of both sides, I find that plaintiff's story is supported by both oral and documentary evidence; whereas defendant has come forward witha story which he has not only not been able to establish but has cooked up a false story. Therefore, I come to the conclusion that the plaintiff's story that defendant was paying rent at the enhanced rate of Rs. 400/- is acceptable and it was not payment towards the consideration money.
11. It is contended on behalf of the respondent that Ext. 1 is a document which was executed admittedly by both the plaintiff and the defendant at the inception of the tenancy and plaintiff has made the endorsement Ext. 1/a to the effect that rent has been enhanced. This is a unilateral entry and no reliance can be placed on the same. But in view of other reliable evidence, as I have discussed above, it cannot be said that simply because the plaintiff has made this entry unilaterally, the increase of house rent is to be disbelieved.
12. It is further contended on he half of the defendant that as tenancy was created by Ext. 1 which was for one year at a monthly rent of Rs. 200/-, the suit is not maintainable when plaintiff claims at enhanced rate. There is no dispute about the fact that tenancy was from year to year as per Ext. 1. It is also clear from the terms of the document. According to Section 107 of the Transfer of Property Act read with Section 17 of the Indian Registration Act, such a document is compulsorily registrable. According to Section 49 of the Indian Registration Act, it cannot be utilised for particular purposes enumerated in that section; viz., for affecting any immovable property. But this is a case in which plaintiff comes with a story that towards the end of 1965 there wag another oral agreement between the parties by which the rate of rent was enhanced and it is admitted case of both parties in evidence that it is a monthly tenancy. It is contended on behalf of the respondent that such a contention cannot be raised by the plaintiff by virtue of Section 92 of the Evidence Act. As Exhibit 1 is inadmissible in evidence because it requires compulsory registration, it does not preclude parties to prove by other evidence apart from the document, the subsequent dealings consistent with those rights which the document purported to confer (See Khema Padhan v. Guna Sahu, (1966) 32 Cut LT 478). It has also been decided by a Full Bench in Mt Ugni v. Chowa Mahto, AIR 1968 Pat 302 that Section 91 only excludes other evidence of 'terms of a document but not of existenceof the contract or relationship of landlord and tenant brought about by possession and payment of rent. In view of the aforesaid decisions, I hold that Sec. 92 will not be a bar in this suit.
13. The next contention on behalf of the respondent is that as the House Rent Controller has already decided that there is no relationship of landlord and tenant and the amount of arrears of rent has been paid, the suit is barred by principles of res judicata. There is no such pleading nor there is any issue to that effect. The House Rent Controller has limited jurisdiction. He cannot decide question of title, nor he has any jurisdiction for passing a decree for realisation of arrears of house rent. Admittedly, the decision of the House Rent Controller is now pending in appeal. Therefore, this is not a case which has been finally heard and decided by a Court of competent jurisdiction. In view of these circumstances, I hold that the suit is not barred by res judicata.
14. There is another aspect of the matter which belies completely the defence story of contract for sale. In para. 38 of the evidence of P. W. 8 it has been suggested that by Ext. 1 (which is also Ext. A) the contract for sale was entered into which is not at all the case of the defendant and this completely belies the defence version. In the plaint, plaintiff has claimed arrears of house rent from May, 1973. But in his deposition in Court he has said that he is to get rent from June, 1973. Therefore, plaintiff is entitled to arrears of house rent at the rate of Rs. 400/- from the defendant from June, 1973.
15. In the result, the appeal is allowed. The judgment and decree of the Court below are set aside. Plaintiff's suit is decreed in part. He is entitled to realise arrears of house rent from the defendant at the rate of Rs. 400/- per month from June 1973 together with costs thereon throughout and interest at the rate of 6 per cent per annum.