A.K. Sunder vs V. Srinivas and Others

H. Billappa, J.—This revision by the first defendant is directed against the judgment and decree dated 29.7.2013 passed by the XIX Addl. Small Causes Judge, Bangalore, in S.C. No. 2414/2011.

By the impugned judgment and decree, the Trial Court has decreed the suit of the plaintiffs and has directed the petitioner - first defendant to handover vacant possession of the suit schedule property to the plaintiffs within three months and to pay damages at the rate of Rs. 3,000/- per month to the plaintiffs from the date of suit till the date of delivery of vacant possession.

Aggrieved by that, the petitioner - first defendant has filed this revision petition.

The respondents 1 to 4 are the plaintiffs 1 to 4 before the Trial Court. The fifth respondent was the second defendant before the Trial Court. The parties will be referred to with reference to their rank in S.C. No. 2414/2011.

Briefly stated the facts are:

The respondents 1 to 4 i.e., the plaintiffs 1 to 4 filed suit in S.C. No. 2414/2011 for ejectment of the petitioner herein i.e., the first defendant from the suit schedule property and to direct the first defendant to handover vacant possession of the suit schedule property to the plaintiffs i.e., respondents 1 to 4 herein. Further, to direct the first defendant to pay damages at the rate of Rs. 3,000/- per month from the date of termination of lease till the date of delivery of vacant possession.

The case of the respondents 1 to 4 i.e., the plaintiffs was that they are the absolute owners of the non-residential premises bearing old No. 8/1 to 8/5, new No. 99 PID No. 47-141-99, J.C. Road, Bengaluru-560002, measuring east to west on northern side 14.73 feet and southern side (10.2+3.5) feet and north to south on eastern side 58 feet and western side (51+7) feet. The plaintiffs acquired the said property through a partition decree passed in O.S. No. 604/1992 and FDP. No. 43/2006. The partition decree is registered. After the partition, the plaintiffs intimated during August 2010 to the first defendant. The plaintiffs asked the first defendant to pay the rents to the plaintiffs from September 2010 at the rate of Rs. 1,000/- per month.

It is stated, the first defendant is a tenant in respect of non residential premises bearing old No. 8/1 to 8/5, new No. 99 PID No. 47-141-99, J.C. Road, Bengaluru-560002, measuring east to west northern side 11 feet and north to south 17.6 feet, which is morefully described in the schedule on a monthly rent of Rs. 1,000/- excluding water and electricity charges. The tenancy is from month to month. The premises in the occupation of the first defendant is required by the plaintiffs for their own use and occupation. The first defendant is the tenant in respect of the suit schedule property. The plaintiffs are no longer interested in continuing the first defendant as tenant. The plaintiffs requested the first defendant to surrender vacant possession and put them in possession of the suit schedule property. The first defendant failed to vacate and deliver vacant possession of the suit schedule property to the plaintiffs.

It is stated, the plaintiffs got issued a legal notice dated 4.7.2011 calling upon the first defendant to vacate and deliver vacant possession of the suit schedule property and to pay damages at the rate of Rs. 3,000/- per month. The first defendant replied the notice through his reply dated 18.7.2011.

It is stated, the tenancy of the first defendant is terminated and he is in unauthorized occupation. The first defendant has no legal right to continue as tenant in the suit schedule property. The occupation of the first defendant is illegal and unauthorized. He is liable to pay the damages at the rate of Rs. 3,000/- per month from the date of termination till the date of delivery of vacant possession of the suit schedule property to the plaintiffs. Therefore, the plaintiffs have prayed for ejectment of the first defendant and also to direct the first defendant to pay damages at the rate of Rs. 3,000/- per month from the date of termination till the date of delivery of vacant possession of the suit schedule property to the plaintiffs.

The first defendant i.e., the petitioner herein has filed his written statement denying the plaint averments. It is denied that the plaintiffs are the owners of the suit schedule property and that they have acquired the suit schedule property through partition decree passed in O.S. No. 604/1992 and FDP. No. 43/2006. It is also denied that the plaintiffs intimated the defendant during August 2010.

It is denied that the first defendant is the tenant under the plaintiffs. It is contended that the defendant''s father D.A. Anthony was the tenant under one Smt. Nagarathnammal on a monthly rent of Rs. 75/-. He paid interest free refundable security advance of Rs. 150/-. After the demise of Smt. Nagarathnammal, the first defendant started paying the rents to Sri Chokkanathan as instructed by Smt. Nagarathnammal.

It is stated, the father of the first defendant and the first defendant are the tenants under the said Nagarathnammal since 1957. The first defendant is running business under the name and style of Mahatma Gandhi Electrical Works. Presently the first defendant and his younger brother Sounder are the tenants with respect to property bearing No. 99, J.C. Road, Bengaluru. After the demise of defendant''s father D.A. Anthony on 21.2.2004, the first defendant and his brother are doing business in the premises. The monthly rent is Rs. 2,000/-. The first defendant has paid advance rents till 31.12.2025. It is stated, the father of the defendant D.A. Anthony and Sri Chokkanathan had entered into oral sale agreement in respect of the above mentioned premises. The father of the first defendant had paid totally an amount of Rs. 20,30,000/- towards the sale consideration of Rs. 20,00,000/- in addition to the rents and advance rents paid till 2025. The long lease is virtually a sale. Sri Chokkanathan is dodging to execute the sale-deed in favour of the first defendant on one or the other pretext even after payment of entire sale consideration. It is stated, the first defendant has also paid extra sum of money.

It is stated, the first defendant is a tenant under one late Nagarathnammal and not under the plaintiffs. Therefore, the question of vacating the premises or terminating the tenancy does not arise. It is stated, the plaintiffs never approached the first defendant and requested him to vacate the premises. It is only imagination of the plaintiffs for the purpose of cause of action for the suit. One Chokkanathan who was collecting the rents on behalf of the landlady has collected the advance rents till 2025 and also has entered into an oral agreement of sale in respect of schedule premises and has received entire sale consideration. The first defendant is requesting Sri Chokkanathan to execute registered sale-deed in his favour as he is unable to file any suit in the absence of proper written agreement of sale. It is stated, there is part performance of sale agreement by putting the purchaser in possession of the schedule premises. Therefore, the suit of the plaintiffs who have no right, title or interest in the premises is not maintainable.

It is stated, the first defendant received eviction notice from one T.V. Sugantha and others with respect to the schedule premises claiming that they are the owners of the schedule premises and the first defendant has replied the same denying their ownership. It is stated, to the shock of the first defendant, he received another eviction notice from the plaintiffs dated 4.7.2011. The measurement of the suit schedule premises shown in the plaint and legal notice is totally different. The plaintiffs are strangers and not the owners of the suit schedule premises. It is stated, the first defendant replied the notice on 18.7.2011. The first defendant is not the tenant, but a purchaser of the schedule premises. He is in possession of the schedule premises as a part performance. It is neither illegal nor unauthorized. Therefore, the first defendant is not liable to pay any damages. Therefore, the first defendant has prayed to dismiss the suit.

The plaintiffs have filed rejoinder to the written statement filed by the first defendant contending that the averments that after the demise of the defendant''s father D.A. Anthony on 21.2.2004, the first defendant and his brother are doing business in the premises on a monthly rent of Rs. 2,000/- and has paid advance rents till 31.12.2025 are false and baseless statements. It is denied that the father of the defendant D.A. Anthony and Sri Chokkanathan had entered into oral sale agreement and that the father of the first defendant had paid a total amount of Rs. 20,30,000/- towards sale consideration of Rs. 20,00,000/- in addition to the rents and advance rents paid till 2025 and that the long lease is virtually a sale. It is also denied that Sri Chokkanathan is dodging to execute the sale deed in favour of the first defendant on one or the other pretext even after the payment of entire sale consideration and that the first defendant has paid extra amount. It is also denied that Chokkanathan has issued receipts. It is stated that they are created documents. Sri T.N. Chokkanathan has nothing to do with the suit schedule property. Therefore, the question of entering into any agreement between him and Chokkanathan does not arise. Sri Chokkanathan is one of the LRs., of deceased Nagarathnammal. It is stated that there was a suit pending in O.S. No. 604/1992 for partition and the rights of the parties are yet to be decided. It is contended that in para 9 of the final decree it is stated as follows:

"It is further ordered and decreed that the parties are at liberty to evict the tenants occupying their respective share through due process of law and other sharer will not intervene in the matter. The parties of the suit who are collecting the advance amount from the tenants, they agree that they have to clear the advance."

When such being the state of affairs, the plaintiffs have nothing to do with the alleged advance rent or other claims made by the first defendant.

It is denied that Chokkanathan was collecting the rents on behalf of the landlady and that he has collected rent till 2025 and that he has entered into oral sale agreement in respect of the suit schedule premises and that he has received entire sale consideration and that the defendant requested Chokkanathan to execute a registered sale deed and that he is unable to file the suit in the absence of proper agreement of sale. It is also denied that there is part performance of the sale agreement by putting the purchaser in possession of the suit schedule premises. It is stated, Chokkanathan has nothing to do with the suit schedule property. The suit for partition was pending on the alleged date of long lease or oral sale agreement. The said Chokkanathan is a stranger in respect of the suit schedule property. Whatever the documents entered into by the defendant with the said Chokkanathan are collusive and created documents and they have no legal sanctity. They are not binding on the plaintiffs. The claim made by the first defendant is imaginary.

Thereafter, the first defendant has filed additional written statement dated 18.6.2013. It is contended that the second defendant has not filed any written statement nor appeared before the court to disprove the claim of the first defendant. The plaintiffs and the second defendant are colluding together and avoiding to discharge the obligation entered with the first defendant and his late father D.A. Anthony. The plaintiffs or the second defendant have not uttered anything about the tenants who were there in the property bearing No. 99, J.C. Road, Bengaluru, to decide the partition case effectively with respect to the documents executed by the second defendant in favour of the first defendant and his father late D.A. Anthony.

It is stated, the second defendant has entered into oral agreement with the first defendant''s father D.A. Anthony and has received the rents till 2025 from the first defendant. With mala fide intention, the second defendant has kept quite during the proceeding in the partition suit and has knowledge of the sale consideration amount of Rs. 20,30,000/- received in full and suppressed the entire facts and colluding with the plaintiffs has obtained the final decree in the partition suit. It is stated, the plaintiffs also knowingly have not whispered that the second defendant was collecting the rents from the tenants who were in the property. The plaintiffs with ulterior motive have not made the second defendant as party to the proceedings. The first defendant filed an application to bring the second defendant on record. It was rejected. Thereafter, in the revision preferred in CRP. No. 479/2012, this Court was pleased to remand the matter for fresh enquiry by allowing the application to implead the second defendant as party to the proceedings. It is stated, if the second defendant appears before the Court to contest the matter, then the truth would come out and the doubts could be cleared. The second defendant is aware that the plaintiffs have entered into agreement of sale with one Sri H.R. Lakshmana Reddy who is none other than the plaintiffs'' Advocate by suppressing the agreement entered into between the first defendant''s father D.A. Anthony and the second defendant. It is, therefore, the first defendant has prayed to dismiss the suit.

The Trial Court has raised the following points for consideration;

Whether the plaintiffs made out a ground for ejectment of the defendant from the suit premises?

Whether the plaintiffs are entitled for damages?

What order?

On appreciation of the evidence on record, the Trial Court has answered point Nos. 1 and 2 in the affirmative and consequently, has decreed the suit directing the first defendant to vacate and hand over vacant possession of the suit schedule property to the plaintiffs within three months and to pay damages at the rate of Rs. 3,000/- per month to the plaintiffs from the date of suit till the date of delivery of vacant possession.

Aggrieved by that, the petitioner-first defendant has filed this revision petition.

The learned counsel for the petitioner contended that the impugned judgment and decree cannot be sustained in law. He also submitted that the Trial Court has failed to consider the evidence on record in proper perspective. Further he submitted that there was a sale agreement between Chokkanathan and the petitioner''s father. The suit for specific performance is pending. Therefore, the suit for ejection was not maintainable. The partition suit between the family members was not bona fide. The decree passed in the partition suit is also under challenge. Therefore, the ejection order cannot be sustained in law. Further he submitted that the rents are collected by Chokkanathan upto 2025. The receipts are produced. The Trial Court has failed to consider the receipts produced by the first defendant towards sale consideration amount and also advance rents. The suit filed by the respondents was not maintainable. The tenant can set up the plea of collusive decree even in collateral proceedings also. The judgment and decree passed in the partition suit is a nullity in law. He also submitted that there is a merger of tenancy rights with the higher rights in view of the sale agreement entered into between Chokkanathan and the petitioner''s father. The plea of sale agreement has not been considered by the Trial Court. Further he submitted that Chokkanathan was collecting the rents and he has collected the rents upto 2025. He also submitted that the compromise was entered into in the final decree proceedings in FDP. No. 43/2006 on 19.8.2010. The plaintiffs have entered into sale agreement with one Lakshmana Reddy, Advocate, on 18.11.2010. Thereafter, the sale agreement is cancelled on 27.12.2012. The said Lakshmana Reddy, Advocate, conducted the case on behalf of the plaintiffs before the Trial Court. Further he submitted that pursuant to the order passed in CRP. No. 479/2012, Chokkanathan was impleaded as a party to the proceedings. He has not filed his written statement nor adduced any evidence. Further he submitted that the suit for declaration is pending in O.S. No. 8582/2012. In the quit notice, it is stated, Chokkanathan has leased out and he has intimated the petitioner to vacate the premises. In the decree, there is a clause that the parties who are collecting the advance must clear it. Further he submitted that the delivery warrant is not executed and final decree proceedings are still pending. In the final decree proceedings, physical possession of the property is not delivered. Chokkanathan was impleaded, but he did not participate in the proceedings. However, he has filed his objections in the revision petition. Therefore, the objections filed by Chokkanathan in the revision petition may be treated as his written statement. Further he submitted that the plaintiffs should have examined Chokkanathan. He also submitted that the partition decree is collusive and the suit has been filed challenging the said decree. The finding of the Trial Court is totally incorrect. He also submitted that the power of attorney holder cannot depose to the facts which are not within his knowledge. In the present case, the power of attorney holder of the respondents had no knowledge of the facts and therefore, his evidence needs to be discarded. Further he submitted that the receipts are produced by the petitioner-first defendant and they bear the signature and thumb impression of Chokkanathan. The Trial Court has not considered these receipts. The receipts show that the sale consideration has been paid. As a tenant, the petitioner was already in possession. Pursuant to the sale agreement, he continues to be in possession. Therefore, there is a merger of tenancy rights with the higher rights in view of the sale agreement. He also submitted that the tenant can challenge collusive decree even in collateral proceedings also. The Trial Court has committed material irregularity while passing the impugned judgment and decree. He also submitted that IA 3/2015 to treat the objections filed by Sri T.N. Chokkanathan as his written statement and IA 4/2015 for additional evidence may be allowed.

Placing reliance on the decision of the Hon''ble Supreme Court reported in AIR 1951 SC page 186, the learned counsel for the petitioner/first defendant submitted that the lease was taken in the year 1957. Possession continues with the first defendant. In the final decree proceedings, there is no evidence of taking possession and nothing is produced to show that possession was taken. In view of sale agreement there is a merger of tenancy rights with higher rights due to part performance.

Placing reliance on the decision of the Hon''ble Supreme Court reported in V.E.A. Annamalai Chettiar and Another Vs. S.V.V.S. Veerappa Chettiar and Others, , the learned counsel for the petitioner/first defendant submitted that the advance money is paid pursuant to the sale agreement and there is a recital in the receipts about the agreement which constitutes a written sale agreement.

Further Placing reliance on the decision of the Hon''ble Supreme Court reported in Kollipara Sriramulu Vs. T. Aswathanarayana and Others, , the learned counsel for the petitioner/first defendant submitted that for a sale agreement two things are required i.e., fixation of price and consideration. In the present case, consideration was agreed and Chokkanathan has issued receipts. Therefore, it constitutes sale agreement.

Further placing reliance on the decision of the Hon''ble Supreme Court reported in Delhi Motor Company and Others Vs. U.A. Basrurkar and Others, , the learned counsel for the petitioner/first defendant submitted that receipts show payment of rents and the petitioner is in possession under section 53A of the T.P. Act and it can be used as a defence. Therefore, the lessor cannot claim any rights.

Placing reliance on the decision of the Hon''ble Supreme Court reported in Union of India (UOI) and Others Vs. Ramesh Gandhi, , the learned counsel for the petitioner/first defendant submitted that the partition between the plaintiffs and T.N. Chokkanathan was a collusive one. The agreement between T.N. Chokkanathan and defendant No. 1 and his father Anthony was suppressed by T.N. Chokkanathan in the partition suit. Therefore, the decree is a nullity in law.

Placing reliance on the decision of the Hon''ble Supreme Court reported in Sk. Sattar Sk. Mohd. Choudhari Vs. Gundappa AMabadas Bukate, , the learned counsel for the petitioner/first defendant submitted that it is open for the tenant to set up a plea that the partition was behind the back of the petitioner and it will take away the valuable rights of the petitioner. Therefore, the partition is sham and collusive. The Trial Court should have recorded a finding as to whether the decree for partition was collusive and would take away the rights of the tenant. But, the Trial Court has failed to do this.

Placing reliance on the decision of the Hon''ble Supreme Court reported in Nalakath Sainuddin Vs. Koorikadan Sulaiman, , the learned counsel for the petitioner/first defendant submitted that the sale agreement is evidenced from the recitals in the receipt itself. The tenant is already in possession. The amount paid by means of advance was meant to purchase the property. The leasehold rights have merged with higher rights. In view of section 111(d) , the lesser rights cease to exist and merged with the higher rights which is not considered by the Trial Court.

Placing reliance on the decisions reported in Chinna Thevar Vs. Gnanaprakasi Ammal and Another, , Hari Pratap and Another Vs. Ramgopal and Another, and Arjunlal Bhatt Mall Gothani and Others Vs. Girish Chandra Dutta and Another, , the learned counsel for the petitioner/first defendant submitted that if the tenant is already in possession based on the written agreement of lease and if the lessor receives further amount even on the basis of oral agreement and it is evidenced by the receipt, the tenant is entitled to invoke section 53A of the Transfer of Property Act.

Placing reliance on the decisions of the Hon''ble Supreme Court reported in Delhi Development Authority Vs. Skipper Construction Co. (P) Ltd. and Others, , Videocon Properties Ltd. Vs. Dr. Bhalchandra Laboratories and Others, , the learned counsel for the petitioner/first defendant submitted that the advance amount paid under the agreement to T.N. Chokkanathan as a member of the joint family would be a statutory charge in terms of section 55(6)(b) of the Transfer of Property Act.

Placing reliance on the decision of the Hon''ble Supreme Court reported in Dattatraya Vs. Rangnath Gopalrao Kawathekar (Dead) by his legal representatives and Others, , the learned counsel for the petitioner/first defendant submitted that the burden of proving that the document is forged one is on the person who denies the document. The contents of the document need not be proved.

Placing reliance on the decision reported in K. Appa Rao and Another Vs. P. Balasubramania Gramani and Others, , the learned counsel for the petitioner/first defendant submitted that the compromise decree is collusive and the family members were aware of the sale agreement between the petitioner and Chokkanathan and therefore, the impugned judgment and decree cannot be sustained in law.

Further he submitted that since the delivery warrant was returned in the final decree proceedings, there is no evidence to show that the plaintiffs took possession in the final decree proceedings. The final decree proceedings have not reached finality. Therefore, there is total suppression of facts by the plaintiffs. The plaintiffs and T.N. Chokkanathan have colluded and obtained a collusive decree. Therefore, the proceedings are vitiated. Further he submitted that the petitioner has filed suit in O.S. No. 8582/2012 for declaration challenging the compromise decree and also for specific performance and other reliefs. Therefore, the Trial Court was not justified in decreeing the suit.

Further he submitted that in the compromise decree it is stated that the parties are at liberty to evict the tenants occupying their respective share through due process of law and other sharers will not intervene in the matter. The parties to the suit who are collecting the advance amount from the tenants have to clear the advance. While the plaintiffs are trying to take advantage of the first part of this arrangement, they are not fulfilling the second part of it i.e., return of the amount collected.

Further he submitted that in the final decree proceedings, the Court Commissioner was appointed. The warrant was returned on 5.6.2010. It has been suppressed. The judgment and decree is obtained by fraud and it is a nullity. When delivery warrant for possession was returned and physical possession was not taken, the plaintiffs cannot file suit for ejection.

In the absence of written statement by the second defendant, the plaintiffs have to prove their case. He placed reliance on the decision of the Hon''ble Supreme Court reported in Maya Devi Vs. Lalta Prasad, and Bogidhola Tea and Trading Co. Ltd. and Another Vs. Hira Lal Somani, and submitted that the matter requires reconsideration and therefore, the judgment and decree may be set-aside.

As against this, the learned counsel for the respondents 1 to 4 submitted that the impugned judgment and decree does not call for interference. The Trial Court on proper consideration of the material on record has rightly decreed the suit and therefore, the impugned judgment and decree does not call for interference. He also submitted that the alleged sale agreement is not in writing. The terms of contract cannot be ascertained with reasonable certainty. Therefore, section 53A of the Transfer of Property Act is not attracted. Further he submitted that except producing the receipts they are not proved in accordance with law. Neither the contents nor the signature or thumb impression of Chokkanathan on the receipts is proved. Mere production of the receipts is not sufficient. As the contents and signature on the receipts are not proved they cannot be relied upon. The petitioner cannot claim the benefit of section 53A of the Transfer of Property Act as the sale agreement is not in writing. Even according to the petitioner, the sale agreement is oral. The petitioner has deposed that they are the tenants under Nagarathnammal and Chokkanathan was collecting the rents on behalf of Nagarathnammal. The petitioner contends that the entire sale consideration amount has been paid. If that is so, it is difficult to believe how the petitioner can pay rents upto 2025. In O.S. No. 8562/2012, the petitioner has prayed for permanent injunction and also to enforce the sale agreement against T.N. Chokkanathan and the property allotted to the share of Chokkanathan in terms of the compromise decree in FDP. No. 43/2006 dated 19.8.2010. Further he submitted that the petitioner has deposed that there is no sale agreement for having made sale transaction with T.N. Chokkanathan. He also submitted that the sale agreement which was made in favour of Sri Lakshmana Reddy, Advocate, has been cancelled on 27.12.2012. The petitioner''s father D.A. Anthony died on 21.2.2004. The receipts are not signed by the respondents. They are not proved. Infact the receipts are fabricated. The suit for partition was filed on 22.1.1992. It was decreed on 24.8.2005. The final decree was passed on 19.8.2010. After the final decree was passed, the property number was given as 99 to the respondent''s property. The suit schedule property never had the number 99 prior to 2010. If the petitioner has paid the amount to Sri Chokkanathan, it can be recovered from him. The petitioner has admitted issuance of notice. No inconvenience would be caused to the petitioner if he is asked to vacate the premises. In Ex. D5 - reply notice, there is no whisper regarding the sale agreement or payment of sale consideration amount. Even after filing of the ejection suit, it is difficult to believe how the petitioner can pay the rents to T.N. Chokkanathan. Further he submitted that the General Power of Attorney holder is also one of the co-owners and he knows the facts of the case and therefore, he has deposed to the facts which are within his knowledge and it is permissible in law.

Placing reliance on the decision reported in Maniram Industrial Enterprises Vs. B.S. Sathya Kumar, , the learned counsel for the respondents 1 to 4 submitted that as per the family arrangement, the property has fallen to the share of the plaintiffs. The petitioner has not denied that he is the tenant. Therefore, it is not open for the tenant to contend that the plaintiffs have no locus standi to file the ejectment suit.

Placing reliance on the decision of the Hon''ble Supreme Court reported in Mohar Singh (Dead) by Lrs. Vs. Devi Charan and Others, , the learned counsel for the respondents submitted that on partition, the suit schedule property has come to the share of the plaintiffs. Therefore, it is not necessary to implead the other sharers. The co-owners can file a suit for ejection.

Further Placing reliance on the decision of the Hon''ble Supreme Court reported in Jodharam Vs. Smt. Jagnmathamma, , the learned counsel for the respondents submitted that one co-heir of the deceased landlord could sue for eviction in the absence of other co-heirs who do not have any objection. One of the co-owners is competent to serve notice terminating tenancy and competent to maintain a suit under section 106 of the Transfer of Property Act.

Placing reliance on the decision reported in Abdul Wajid Vs. A.S. Onkarappa, , the learned counsel for the respondents submitted that Small Cause Courts have jurisdiction to take cognizance of not only a suit for ejectment, but also a suit for ejectment with a prayer for recovery of mesne profits or damages.

Further Placing reliance on the decision of the Patna High Court reported in Smt. Kalawati Tripathi and Others Vs. Smt. Damayanti Devi and Another--> , the learned counsel for the respondents submitted that plea of part performance is not available to a tenant as written contract is sine qua non for applicability of doctrine of part performance. In the absence of a written agreement, the party cannot be allowed to raise the plea of part performance.

Further he submitted that the I.As. filed by the petitioner to treat the objections filed by T.N. Chokkanathan as written statement and for additional evidence are liable to be rejected. He also submitted that there is no provision in law to treat the objections filed in the CRP as written statement filed by the parties. Further he submitted that the documents produced by way of additional evidence are xerox copies and they are concocted documents. There is no reference to these documents either in the revision petition or in the written statement or in the suit filed by the petitioner and therefore, the I.As. are liable to be rejected. He, therefore, submitted that the revision petition may be dismissed.

I have carefully considered the submissions made by the learned counsel for the parties.

The points that arise for my consideration are:

(1) Whether the Trial Court was justified in holding that there is relationship of landlord and tenant and the plaintiffs have made out a ground for ejection of the first defendant?

(2) Whether there is merger of tenancy rights with higher rights in view of sale agreement as contended by the petitioner/first defendant?

(3) Whether I.A. Nos. 3 and 4 of 2015 need to be allowed?

(4) Whether the impugned judgment and decree calls for interference?

Point Nos. 1 and 2 are considered together.

It is relevant to note, the suit is for ejection of the petitioner/first defendant. The respondents 1 to 4 i.e., the plaintiffs have contend that they are the owners of the suit schedule property and they have acquired the suit schedule property through partition decree passed in O.S. No. 604/1992 and FDP. No. 43/2006. The plaintiffs informed the first defendant to pay the rents to the plaintiffs w.e.f. 1.9.2010 at the rate of Rs. 1,000/- per month. The first defendant is a tenant in respect of the suit schedule property. The tenancy is a monthly tenancy. The plaintiffs requested the first defendant to vacate and deliver vacant possession. The tenancy was terminated by issuing a legal notice dated 4.7.2011. The first defendant sent an untenable reply to the legal notice. Therefore, the plaintiffs have prayed for ejection of the first defendant i.e., the petitioner herein.

The petitioner herein i.e., the first defendant has contended that his father D.A. Anthony was the tenant under one Smt. Nagarathnammal on a monthly rent of Rs. 75/- and he has paid a interest free refundable security advance of Rs. 150/-. After the demise of Smt. Nagarathnammal, the first defendant started paying rents to Sri T.N. Chokkanathan as directed by Smt. Nagarathnammal. It is also contended that the father of the first defendant and the first defendant were running a business in the name and style of Mahatma Gandhi Electrical Works. At present, the first defendant and his younger brother Sounder are the tenants with respect to property bearing No. 99, J.C. Road, Bengaluru. After the demise of defendant''s father D.A. Anthony on 21.2.2004, the first defendant and his brother are doing business in the premises on a monthly rent of Rs. 2,000/-. It is stated, the first defendant has paid advance rents till 31.12.2025.

Further it is contended that the father of the first defendant Sri D.A. Anthony and Sri T.N. Chokkanathan had entered into oral sale agreement in respect of the premises bearing No. 99, J.C. Road, Bengaluru. The father of the first defendant had paid in all Rs. 20,30,000/- towards the sale consideration of Rs. 20,00,000/- in addition to the rents and advance rents paid till 2025. Sri T.N. Chokkanathan is dodging to execute the sale-deed in favour of the first defendant on one or the other pretext. It is stated, T.N. Chokkanathan has issued receipts accepting the sale consideration. It is denied that the petitioner i.e., the first defendant is a tenant under the plaintiffs. It is contended that the petitioner/first defendant is the tenant under one late Nagarathnammal and not under the plaintiffs. It is stated that one Sri T.N. Chokkanathan was collecting the rents on behalf of the landlady Smt. Nagarathnammal. He has collected the advance rents upto 2025. He has also entered into an oral agreement of sale in respect of schedule premises and has received entire sale consideration. The first defendant is unable to file the suit in the absence of proper written agreement of sale. It is contended that there is part performance of sale agreement by putting the purchaser in possession of the schedule premises. Therefore, the plaintiffs have no right, title or interest in the property and the suit filed by them is not maintainable. It is contended that the notice issued by the plaintiffs is suitably replied.

The Trial Court considering the material on record has held that the plaintiffs have made out a case for ejection of the first defendant and consequently has decreed the suit.

The plaintiffs have examined first respondent as PW. 1.

On behalf of the plaintiffs, in all, 12 documents i.e., exhibits P1 to P12 have been marked.

On behalf of the petitioner/first defendant, the first defendant has been examined as DW. 1 and exhibits D1 to D9 have been marked.

Insofar as oral evidence is concerned, PW. 1 and DW. 1 have deposed supporting their respective stand. Therefore, it is necessary to refer to the documentary evidence.

Ex. P1 is the General Power of Attorney executed in favour of the 1st plaintiff by the other plaintiffs. It authorizes the 1st plaintiff to manage the property, to improve the property, to file affidavits, declarations etc., in connection with the work of their property, to execute sale agreement, sale deed, gift deed etc., to get water, electricity and sewerage connection, to appear before the authorities, to appoint an advocate or legal practitioner and to appear on their behalf in any court or public office. By the terms of power of attorney, it is clear, the plaintiffs 2 to 4 have authorized the 1st plaintiff to manage the property, to improve the property and also to conduct cases on their behalf.

Ex. P2 is the certified copy of the final decree passed in FDP. No. 43/2006 arising out of O.S. No. 604/1992. In the final decree proceedings, the parties have compromised the matter. The final decree has been passed in terms of the compromise petition. One of the clauses in the final decree reads as follows:

"It is further ordered and decreed that the parties are at liberty to evict the tenants occupying their respective share through due process of law and other sharers will not intervene in the matter. The parties to the suit who are collecting advance amounts from the tenants, they agree that they have to clear the advance."

In the final decree, ''D'' schedule property has been allotted to the share of the plaintiffs who are the legal heirs of the deceased Smt. Rukmini, the daughter of Smt. T.N. Nagarathnammal. Sketch is also annexed identifying the properties allotted to the share of each sharer. Further, the decree shows that the parties have been put in separate possession of their respective schedule properties by metes and bounds. The respective sharers shall be the owner in possession and enjoyment of their respective schedule properties and they are at liberty to change the katha in respect of their schedule properties. The final decree is registered.

Ex. P3 is the copy of the legal notice dated 4.7.2011 issued by the plaintiffs to the 1st defendant i.e., the petitioner. The plaintiffs have terminated the tenancy and called upon the 1st defendant to vacate and deliver vacant possession of the schedule premises.

Ex. P4 is the postal acknowledgement. It shows that the 1st defendant has received the legal notice.

Ex. P5 is the reply dated 18.7.2011 issued by the 1st defendant to the legal notice issued by the plaintiffs.

In the reply, the 1st defendant has admitted that he is a tenant in the premises bearing No. 99 under one Smt. Nagarathnammal since 1957 but not under the plaintiffs'' uncle. The 1st defendant does not know plaintiffs'' uncle. It is denied that the plaintiffs'' uncle informed the 1st defendant about their ownership. It is also denied that Sri T.N. Chokkanathan informed the 1st defendant about the ownership of the plaintiffs. It is denied that the 1st defendant is the tenant under the plaintiffs. It is stated, the 1st defendant is paying rents to his owner Smt. Nagarathnammal regularly till 1992. Later on, Smt. Nagarathnammal became sick and the 1st defendant started paying rents to her second son Sri T.N. Chokkanathan as instructed by Smt. Nagarathnammal. It is stated, Sri T.N. Chokkanathan collected rents up to 31.12.2025 in advance. With ulterior motive, the plaintiffs have issued the legal notice. It is stated, rents are paid up to 31.12.2025 to Sri T.N. Chokkanathan and therefore, no arrears of rents whatsoever. It is stated, the plaintiffs never intimated the 1st defendant to vacate the premises. The 1st defendant is not the tenant under the plaintiffs and it is only an imagination. It is denied that the plaintiffs are the owners of the suit schedule property. In Ex. P5 reply notice there is no whisper about the oral sale agreement or payment of any consideration.

Ex. P6 is the certified copy of the judgment in O.S. No. 604/1992. One of the sons of Smt. Nagarathnammal has filed suit for partition and separate possession of property bearing No. 94, J.C. Road, Bengaluru-2. The suit is decreed granting 1/7th share to the plaintiff.

Ex. P7 is the certified copy of the decree in O.S. No. 604/1992.

Ex. P8 is the certified copy of the compromise petition filed in FDP. No. 43/2006. In the final decree proceedings, the parties have compromised the matter. ''D'' schedule property in the compromise petition is allotted to the share of the plaintiffs as LRs., of deceased Rukmini who is the daughter of Smt. T.N. Nagarathnammal. At para 9 of the compromise petition it is stated that the parties are at liberty to evict the tenants occupying their respective share through due process of law and other sharers will not intervene in the matter. The parties to the suit who are collecting the advance amount from the tenants have agreed that they have to clear the advance. At para 7 of the compromise petition it is stated that it is agreed between the parties that they have been put in separate possession of their respective schedule properties by metes and bounds. The respective sharers shall be owner in possession and enjoyment of their respective schedule properties and they are at liberty to change the katha in respect of their schedule properties.

Ex. P9 is the Khatha Certificate dated 17.5.2011 in respect of the property bearing Municipal New No. 99, J.C. Road, Bengaluru, Ward No. 47 - Dharmarayaswamy temple, standing in the name of Sri V. Srinivas in the register of Bengaluru Mahanagara Palike. The unique Property ID. No. allotted to the property is 47-141-99.

Ex. P10 is the katha extract in respect of the property bearing Municipal No. 99, J.C. Road, Bengaluru. The katha stands in the name of the first plaintiff.

Ex. P11 is the cancellation agreement dated 27.12.2012 cancelling the sale agreement between the plaintiffs and Sri H.R. Lakshmana Reddy. Through Ex. P11, the sale agreement dated 18.11.2010 entered into between the plaintiffs and Sri H.R. Lakshmana Reddy in respect of property bearing No. 99, J.C. Road, Bengaluru which has fallen to the share of plaintiffs has been cancelled.

Ex. P12 is the certified copy of the plaint in O.S. No. 8582/2012 filed by the 1st defendant and his brother against the plaintiffs and their family members and one H.R. Lakshmana Reddy for declaration that the compromise decree passed in FDP No. 43/2006 arising out of decree passed in O.S. No. 604/92 is null and void and not binding on the plaintiffs, to declare that the sale agreement dated 18.11.2010 executed in favour of Sr. H.R. Lakshmana Reddy as void ab initio and not binding on the plaintiffs and for specific performance of the agreement vide receipts dated 10.12.1993 and other receipts dated 12.12.1993, 17.11.1994, 7.1.1996, 14.4.1997, 10.12.1997, 6.3.1999, 19.5.2000, 14.8.2001, 7.12.2003 and 10.5.2005 and direct the plaintiffs to execute the sale deed in favour of the defendant in respect of suit schedule property and also for permanent injunction. In the alternative, it is prayed to enforce the sale agreement by Sri T.N. Chokkanathan with the first defendant''s father in respect of share of T.N. Chokkanathan which is allotted to his share in the compromise petition in FDP No. 43/2006 and for consequential reliefs.

The first defendant i.e., the petitioner has produced exhibits D1 to D9.

Ex. D1 is the sale agreement dated 18.11.2010 entered into between the plaintiffs and Sri H.R. Lakshmana Reddy in respect of property bearing No. 99, J.C. Road, Bengaluru-02 i.e., the suit schedule property which has fallen to the share of the plaintiffs in the final decree proceedings.

Ex. D2 is the encumbrance certificate in respect of the property bearing No. 99, J.C. Road, Bengaluru-02.

Ex. D3 is the legal notice dated 23.2.2011 issued to the petitioner/first defendant by Smt. Sugantha and two others i.e., the wife and children of late T.N. Vishwanathan terminating the tenancy and to vacate the premises and to pay arrears of rent in respect of property bearing No. 94, J.C. Road, Bengaluru-02 which has fallen to their share in the final decree proceedings.

Ex. D4 is the reply dated 9.4.2011 issued by the petitioner/first defendant to the notice issued by the wife and children of late T.N. Vishwanathan. It is stated in the reply that the first defendant is the tenant in respect of premises bearing No. 99 and is paying the rents to his owner regularly. His owner has not asked him to vacate the premises. With ulterior motive, they have issued the notice. It is denied that the first defendant is the tenant under them.

Ex. D5 is the legal notice dated 4.7.2011 issued by the plaintiffs to the petitioner/first defendant terminating the tenancy and calling upon him to vacate the premises and deliver vacant possession.

Ex. D6 is the reply dated 18.7.2011 to Ex. D5 issued by the petitioner/first defendant. It is stated in the reply that the first defendant is the tenant of the premises bearing No. 99 under one Nagarathnammal since 1957 and not under the plaintiffs. The petitioner does not know the uncle of the plaintiffs. It is denied that T.N. Chokkanathan informed the first defendant about the ownership of the plaintiffs. It is stated, the first defendant is paying the rent to his owner Nagarathnammal without any default till 1992. Later on, Nagarathnammal became sick. Thereafter, the first defendant started paying the rents to her second son T.N. Chokkanathan as instructed by Nagarathnammal. T.N. Chokkanathan has collected the rents upto 31.12.2025 in advance and he has not asked the first defendant to vacate the premises. It is with ulterior motive the plaintiffs have issued legal notice. It is stated that the first defendant is not the tenant under the plaintiffs and therefore the question of vacating the premises does not arise. In reply notice, there is no mention about the oral sale agreement or payment of any consideration.

Ex. D7 series consists of ten receipts and Ex. D8 series consists of nineteen receipts.

The receipts in Ex. D7 series are dated 10.5.2005, 12.12.1993, 07.1.1996, 17.11.1994, 14.04.1997, 10.12.1997, 19.05.2000, 06.03.1999, 07.12.2003 and 14.08.2001.

The receipts in Ex. D8 series are dated 1.12.2013 (2 receipts), 01.11.2013 (2 receipts), 01.10.2013 (2 receipts), 01.09.2013 (2 receipts), 01.08.2013 (2 receipts), 01.07.2013 (2 receipts), 01.04.2013, 01.05.2013 (2 receipts), 01.06.2013 (2 receipts) and receipt dated 10.12.1993.

Except producing the receipts Ex. D7 and D8 series, the contents of the receipts or the signature or the thumb impression of T.N. Chokkanathan in the said receipts has not been proved. Nobody has deposed regarding the contents and signature in Ex. D7 series (10 receipts) and Ex. D8 series (19 receipts). The receipts have been marked for identification purpose. But, the contents have not been proved.

Ex. D9 is the certified copy of the order-sheet in O.S. No. 8582/2012.

From the evidence on record, it is clear, the property bearing No. 99, J.C. Road, Bengaluru - 02 belonged to Smt. Nagarathnammal. The petitioner i.e., the first defendant''s father D. Anthony was the tenant under Smt. Nagarathnammal on a monthly rent of Rs. 75/-. After the demise of Smt. Nagarathnammal, the petitioner/first defendant was paying the rents to Sri T.N. Chokkanathan who is one of the sons of Late Nagarathnammal.

After the demise of Smt. Nagarathnammal, her son by name Sri T.N. Vishwanathan had filed suit in O.S. No. 604/1992 for partition and separate possession of the property bearing No. 94 situated at J.C. Road, Bengaluru measuring 10,500 sq.ft. consisting of two floors including five shop premises. The said suit has been decreed. Thereafter, final decree proceedings have been initiated in FDP No. 43/2006. In the final decree proceedings, the parties have compromised the matter. They have filed a compromise petition as per Ex. P8. The final decree has been passed in terms of the compromise petition. Thereafter, the final decree is registered. In the final decree proceedings, the parties have agreed that they have been put in possession of their respective schedule properties by metes and bounds. The respective sharers shall be the owner in possession and enjoyment of their respective schedule properties and they are at liberty to change the khatha in respect of their schedule properties. It is also agreed in the compromise petition that the parties are at liberty to evict the tenants occupying their respective shares through due process of law and other sharers will not intervene in the matter. The parties to the suit who are collecting the advance amount from the tenants, have agreed that they have to clear the advance. From the terms of the compromise petition and the final decree, it is clear, the parties were put in possession of their respective shares allotted to them. In the compromise, D schedule properties i.e., the suit schedule property has been allotted to the share of the plaintiffs.

Thereafter, the plaintiffs have issued legal notice dated 4.7.2011 as per Ex. P3 terminating the tenancy and calling upon the petitioner/first defendant to vacate and deliver vacant possession of the premises. The first defendant has replied the notice as per Ex. P5 denying the relationship of landlord and tenant between the plaintiffs and himself and contending that he is a tenant in respect of the premises bearing No. 99 under Nagarathnammal since 1957 and he was paying rents to Nagarathnammal till 1992 and thereafter Nagarathnammal fell sick and as per her instructions, the rents were paid to T.N. Chokkanathan the second son of Nagarathnammal. In the reply notice Ex. P5 dated 18.7.2011 there is no whisper about the oral sale agreement between the first defendant''s father and T.N. Chokkanathan or payment of any consideration.

Thereafter, as the first defendant has declined to vacate the premises, the plaintiffs have filed suit in S.C. No. 2414/2011 for ejectment of the petitioner/first defendant. In the suit, the first defendant has mainly contended that his father was the tenant under Smt. Nagarathnammal. After the death of Smt. Nagarathnammal, he was paying the rents to Sri T.N. Chokkanathan. He has paid advance rents upto 2025 to Sri T.N. Chokkanathan. Further it is contended that there was oral sale agreement between Sri T.N. Chokkanathan and father of the first defendant and a sum of Rs. 20,30,000/- was paid towards sale consideration amount. Therefore, the plaintiffs cannot eject the petitioner/first defendant.

It is not in dispute that the first defendant''s father D.A. Anthony was a tenant under Nagarathnammal. After the demise of Nagarathnammal, the petitioner/first defendant contends that he was paying the rents to T.N. Chokkanathan and he has paid advance rents upto 2025. The main contention of the petitioner/first defendant is that he is not a tenant under the plaintiffs. He has paid advance rent upto 2025 to Sri T.N. Chokkanathan and that a sum of Rs. 20,30,000/- has been paid towards sale consideration amount. Therefore, he cannot ejected.

Insofar as the contention that the petitioner/first defendant has paid advance rent upto 2025 and there was an oral sale agreement between the first defendant''s father and Sri T.N. Chokkanathan is concerned, the petitioner/first defendant relies upon receipts Ex. D7 series and D8 series. Ex. D7 series consists of 10 receipts and Ex. D8 series consists of 19 receipts. Except producing these receipts and marking them as exhibits D7 series and D8 series, nobody has deposed to the contents of exhibits D7 series and D8 series. Mere marking of the documents is not sufficient. Unless the contents of the documents and signatures on the documents are proved, they cannot be relied upon. In the present case, the petitioner/first defendant has not proved the contents of the documents i.e., exhibits D7 series and D8 series. Nobody has deposed as to the contents and signatures in these receipts. Nobody has identified the signatures or thumb impression of Sri T.N. Chokkanathan in exhibits D7 series and D8 series. In the absence of proof as required under law, exhibits D7 series and D8 series cannot be relied upon as evidence. It is also relevant to note, the first opportunity for the first defendant to mention about the sale agreement was when he replied the legal notice. In the reply notice, there is no whisper about the sale agreement or payment of any consideration amount. It is also relevant to note, in some of the receipts, the property number is mentioned as 8/99 or 99. The property number 99 was given only subsequent to the final decree. Therefore, it is difficult to understand as to how the property number 8/99 or 99 is mentioned in the receipts issued prior to the final decree. Therefore, no reliance can be placed on exhibits D7 series or D8 series. The petitioner/first defendant contends that there was a oral sale agreement between the first defendant and his father. But, no date, month or year is mentioned in the written statement. The averments regarding oral sale agreement are vague and lacks particulars. In the absence of acceptable material regarding oral sale agreement or payment of advance rents, the contention of the petitioner/first defendant cannot be accepted.

No doubt, the learned counsel for the petitioner/first defendant contended that there is merger of tenancy rights with higher rights in view of oral sale agreement. The pleadings are lacking regarding date and time of oral sale agreement. There is no proof of oral sale agreement said to have been entered into between the petitioner''s father and Sri T.N. Chokkanathan. To claim merger, the petitioner/first defendant must establish that there was a sale agreement and as a part performance he has continued in possession. In the present case, there is lack of particulars and also there is no acceptable evidence regarding oral sale agreement. Therefore, the decision relied upon by the learned counsel for the petitioner to contend that there is a merger of tenancy rights with the higher rights in view of oral sale agreement cannot be accepted and accordingly, it is rejected.

It was contended by the learned counsel for the petitioner/1st defendant that there is no relationship of landlord and tenant between the petitioner/first defendant and the plaintiffs. It is not in dispute that the property belonged to Smt. Nagarathnammal. The petitioner i.e., the first defendant''s father D.A. Anthony was the tenant under Smt. Nagarathnammal. According to the petitioner, after the death of Smt. Nagarathnammal, the petitioner/first defendant was paying the rents to Sri T.N. Chokkanathan the son of Smt. Nagarathnammal. After the death of Smt. Nagarathnammal, one of the sons of Smt. Nagarathnammal has filed suit in O.S. No. 604/1992. The said suit has been decreed on 24.8.2005. Subsequently, in the final decree proceedings in FDP. No. 43/2006, the shares have been allotted to the legal heirs of Smt. Nagarathnammal. The suit schedule property has been allotted to the share of the plaintiffs. It is clear, since the year 1992, the partition suit was pending in respect of the suit schedule property and it was decreed in the year 2005. Thereafter, in the final decree proceedings shares have been allotted to all the legal heirs of Smt. Nagarathnammal including Sri T.N. Chokkanathan. If that is so, it is difficult to believe how Sri T.N. Chokkanathan can collect the advance rents upto 2025 or enter into oral sale agreement with the father of the first defendant. Sri T.N. Chokkanathan is neither the Manager nor the power of attorney holder of any of the family members.

Section 109 of Transfer of Property Act provides as follows:

"Section 109 . Rights of lessor''s transferee.--If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him: Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee. The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased."

In Mohar Singh (Dead) by Lrs. Vs. Devi Charan and Others, , the Hon''ble Supreme Court has held as follows:

"It is true that a partition is not actually a transfer of property but would only signify the surrender of a portion of a joint right in exchange for a similar right from the other co-sharer or co-sharers. However, some decisions of the High Courts tend to the view that even a case of partition is covered by Section 109 and that, in any event, even if the section does not in terms apply the principle of the section is applicable as embodying a rule of justice, equity and good conscience."

The Allahabad High Court in its earlier decision has taken a view that Section 109 of the Transfer of Property Act is attracted to the case of partition also and the Hon''ble Supreme Court also applied the same rule in the instant case.

It has been further held as follows:

"The correctness of the decision in Ram Chandra Singh''s case was not assailed before us and, therefore, we do not feel called upon to pronounce on it. We should, we think apply the same rule to this case. Several other High Courts have also taken this view, though, however, some decisions have been content to rest the conclusion on the general principle underlying Section 109 , Transfer of Property Act, as a rule of justice, equity and good conscience."

It is clear, the Hon''ble Supreme Court has observed that the principles of Section 109 of T.P. Act are applicable even to the cases of partition also. Therefore, the petitioner cannot contend that the plaintiffs cannot eject him. In the partition suit, the suit schedule property has been allotted to the share of plaintiffs and they can eject the petitioner/first defendant. Therefore, there is no merit in the contention that the petitioner/first defendant is not the tenant under the plaintiffs and they cannot eject him.

It was contended by the learned counsel for petitioner/1st defendant that the 1st plaintiff i.e., PW. 1 is a power of attorney holder and he cannot depose to the facts which are not within his knowledge. Therefore, the evidence of PW. 1 i.e., the first plaintiff cannot be relied upon. I do not find any merit in this contention. PW. 1 i.e., the first plaintiff is the brother of the other plaintiffs. He is one of the legal heirs of Rukmini, the daughter of Smt. Nagarathnammal. He is a co-sharer. He has personal knowledge of the facts pleaded being a co-owner and co-sharer. Further, the other plaintiffs have executed general power of attorney as per Ex. P1. The plaintiffs 2 to 4 have authorized the first plaintiff not only to engage the services of the counsel and conduct the case on their behalf. The 1st plaintiff is also authorized to manage, supervise and improve the properties. Therefore, the first plaintiff has deposed from his personal knowledge and not as a substitute. Being a co-owner and power of attorney holder, the 1st plaintiff has conducted the case. He has deposed from his personal knowledge which is permissible in law. Therefore, there is no merit in the contention that the evidence of PW. 1 cannot be relied upon. The decisions relied upon by the learned counsel for the petitioner/first defendant are not applicable to the facts of the present case.

It was contended by the learned counsel for the petitioner/first defendant that the petitioner is in possession of the property by virtue of the oral sale agreement entered into between the petitioner''s father D.A. Anthony and T.N. Chokkanathan. Even in oral sale agreement also Section 53A of the Transfer of Property Act is applicable.

Section 53A of the Transfer of Property Act reads as follows:

Section 53A . Part performance.--Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that 2[***] where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:

Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.

It is clear from Section 53A of the T.P. Act that the agreement must be in writing. In the present case, oral sale agreement is pleaded. It lacks particulars. Apart from this, there is no acceptable evidence to prove the oral sale agreement between the petitioner''s father and T.N. Chokkanathan. When oral sale agreement is not proved, question of applying Section 53A of the T.P. Act does not arise.

In Smt. Kalawati Tripathi and Others Vs. Smt. Damayanti Devi and Another--> , Patna High Court has held that the attornment by a tenant is not a condition precedent for creating a relationship of landlord and tenant between the transferee and the tenant. The tenant pleading that oral agreement of sale was entered into between him and landlord. The plea of part performance is not available to a tenant as written contract is sine qua non for applicability of doctrine of part performance.

In the present case, the sale agreement is oral even according the petitioner/1st defendant. It is not proved. Therefore, the petitioner/first defendant cannot contend that he is entitled for the benefit of Section 53A of the Transfer of Property Act or there is merger of tenancy rights with the higher rights. Therefore, the contention of the petitioner that there is no relationship of landlord and tenant and that he was not a tenant under the plaintiffs and that there was merger of tenancy rights with the higher rights and the evidence of PW. 1 cannot be relied upon cannot be accepted and accordingly, it is rejected. Point Nos. 1 and 2 answered accordingly holding that plaintiffs are entitled to eject the petitioner/first defendant and there is no merger of tenancy rights with higher rights as contended by the petitioner/first defendant.

Point No. 3.

I.A. No. 3/2015 has been filed by the petitioner praying to treat the objections filed by the respondent No. 5 Sri T.N. Chokkanathan as his written statement.

Sri T.N. Chokkanathan i.e., respondent No. 5 was a party to the proceedings before the Trial Court. He was impleaded as a party to the proceedings pursuant to the direction of this Court. He has appeared in the suit, but has neither filed written statement nor contested the matter. In the revision petition, Sri T.N. Chokkanathan has filed his objections denying execution of the receipts. When there was an opportunity to file the statement, Sri T.N. Chokkanathan has not filed his written statement. Therefore, at this stage, at the instance of the petitioner, the objections filed by Sri T.N. Chokkanathan in the revision petition cannot be treated as written statement. Therefore, the prayer made in I.A. No. 3/2015 cannot be granted. Accordingly, I.A. No. 3/2015 is hereby rejected.

I.A. No. 4/2015 has been filed by the petitioner/first defendant praying to produce additional evidence by producing a consent letter, receipt dated 1.1.1995 and receipt dated 18.2.1999.

The respondents 1 to 4 have filed objections to IA contending all the receipts are part of receipt books containing serial numbers mentioning the subject property number as 8/99. It is inexplicable as to how the two receipts under the receipt book of the petitioner Mahatma Gandhi Electrical Works mentions the property number as 99 and the serial numbers of the receipts are A305 and A306 though they are dated 01/01/1995 and 18/02/1999. It exposes that they are fabricated by the petitioner and produced now. It further exposes that the shop No. 99 was given to the subject property only after final decree was made on 19/08/2010 and as such the only inference that can be drawn is that the receipts are also fabricated by the petitioner and produced now.

There is no reference to these documents either in the reply notice or in the written statement or in the revision petition though several receipts are referred to in the revision petition. Further they are xerox copies of the documents. Consent letter is dated 16.1.2012. There is no reference to other receipts in the pleadings or evidence. Therefore, the petitioner cannot be permitted to produce additional evidence. Accordingly, I.A. No. 4/2015 is hereby rejected.

Point No. 4.

For the reason stated above, the Trial Court was justified in decreeing the suit. The impugned judgment and decree does not call for interference.

Accordingly, the revision petition is hereby dismissed.

The petitioner/first defendant is a tenant since long time. Therefore, it is appropriate to grant some reasonable time to vacate the premises. Accordingly, four months time from today is granted to the petitioner/1st defendant to vacate and deliver vacant possession of the suit schedule premises to the respondents - plaintiffs subject to the condition that the petitioner/first defendant shall pay damages as directed by the Trial Court within two months from today, failing which, the respondents - plaintiffs are at liberty to execute the decree.