Rajkumar Khubwani vs Smt. Ram Pyari Bai

Prashant Kumar Mishra, J.

The appellant Rajkumar Khubwani is the defendant in the trial Court in the suit preferred by the respondent/plaintiff Smt. Ram Pyari Bai for the appellant''s eviction from the suit premises, vacant possession thereof and damages.

The trial Court dismissed the suit, however, on appeal by the plaintiff/ respondent, the learned first appellate Court has allowed the first appeal and has decreed the suit directing the appellant/defendant to hand over vacant possession of the suit premises to the plaintiff within 2 months and pay damages to the tune of Rs. 450/- per month form the date of filing of the suit, i.e. 6-2-2003 till the date vacant possession is delivered to the plaintiff.

Feeling aggrieved by the said judgment and decree of the first appellate Court the present second appeal u/s 100 of the CPC has been preferred by the defendant/appellant before this Court.

The case of the plaintiff/respondent, as reflected in the plaint, is that the plaintiff is the owner of a house situated at Village Silyari, District Raipur, the front portion of which has been let out to the defendant. The let out portion has been shown with red ink in the map attached with the plaint which is the suit premises. According to the plaintiff, the tenancy was on a monthly rent of Rs. 450/- and that the defendant had encroached some other portion of the property which was not let out to him however, in spite of notice dated 30-12-2002, the defendant did not vacate the premises, as a result, his tenancy has been terminated with effect from 1-2-2003, however, upon failure of the tenant to hand over vacant possession, the suit has been preferred along with claim of damages at the rate of Rs. 100/- per day.

The defendant, in his written statement, denied the plaint averments though he admitted that the suit premises was let out to him about 16 years back at the rate of Rs. 150/- per month, which was later on increased to Rs. 300/- per month. The plaintiff left the back portion of the suit premises and allowed him to occupy the same on additional amount of Rs. 150/- per month and she shifted to Raipur. It was further stated in the written statement that Surendra, the son of plaintiff received rent from 1994 to July, 1999 and thereafter the said Surendra executed an agreement of sell the entire property for Rs. 95,000/- on 3-8-1999 and received a sum of Rs. 91,200/- during the period between 3-8-1999 to 7-12-2001. It is the case of the defendant that after the execution of the agreement to sell between himself and Surendra, he occupied the suit premises as prospective purchaser and as such the tenancy has automatically come to an end. The defendant further stated that the notice sent by the plaintiff was duly replied by the defendant through his counsel denying the fact that he is the tenant of the plaintiff. The defendant contended that the plaintiff is not entitled to recover possession nor she is entitled to seek damages from him.

In course of trial, the plaintiff examined herself as P.W-1. On the other hand, the defendant examined himself as D.W-1 and he also examined one Raju Raghwani as D.W.-2 Suresh Kukreja as D.W.-3, Sudesh Kumar Khubwani as D.W.-4, Sukhram Sahu as D.W.-5 and Laxmichand as D.W.-6.

The plaintiff has produced and proved the rent note (tenancy agreement) dated 1-10-1989 as Ex. P-1, legal notice dated 30-12-2002 as Ex.P-2 and its acknowledgement Ex.P-3. The defendant produced Ex.D-1, which is a copy of the entries in Form D (list of allottees), Ex.D-2 a diary signed by Surendra in proof of receipt of rent, Ex.D-3 one letter of consent by his brother Suresh Kumar Khubwani, Ex.D-4 the agreement to sell dated 3-8-1999 executed by Surendra Kumar Rathore in favour of the defendant, Ex-D-5 to Ex.D-8 receipts of payment received by Surendra, Ex.D-9 a notice addressed to Surendra sent by the lawyer of the defendant for execution of sale-deed, Ex.D-12 addressed to the lawyer of Surendra in reply to the lawyer''s notice dated 26-7-2002 sent on behalf of Surendra Kumar, Ex-D-15 reply by defendant''s counsel to the plaintiff''s notice dated 30-12-2002, Ex.D-18 reply by Surendra to the defendant''s notice for specific performance.

The learned trial Court, by its judgment and decree dated 7-1-2006 in Civil Suit No. 17-A/2005, dismissed the suit after holding that in view of the agreement to sell the premises executed by Surendra in favour of the defendant, the relationship of landlord and tenant ceased to exist on and from 3-8-1999 and the defendant was in possession thereafter as prospective purchaser. The Trial Court also held that the plaintiff is not the owner of the suit house. The trial Court also found that since Surendra is the owner of the suit house, the plaintiff cannot recover possession and she cannot seek eviction of the defendant on the basis of the tenancy agreement which ceases to have effect on and after 3-8-1999. In so far as the quit notice dated 30-12-2002 (Ex.P-2) u/s 106 of the Transfer of Property Act, 1882 (henceforth ''the Act, 1882'') is concerned, he trial Court, in paragraph 15 of its judgment, found that in view of cessation of landlord and tenant relationship, the said quit notice is irrelevant and has not bearing for determining the controversy. The trial Court, therefore, held that the quit notice (Ex.P-2) does not determine the tenancy.

In the appeal preferred by the plaintiff before the first appellate Court, which has been allowed and the suit has been decreed by the impugned judgment and decree dated 28-4-2006 in Civil Appeal No. 21-A/2006, the first appellate Court has discussed the arguments of the parties form paragraphs 7 to 16 and after formulating the questions for determination in paragraph 17 has discussed the evidence on record and written the findings from paragraphs 18 to 38.

Admittedly, the place where the suit premises is situated is out side the municipal limits and, therefore, the provisions of Chhattisgarh Accommodation Control Act, 1961 has no application with respect to the tenancy and the suit has been preferred by the plaintiff after serving the quit notice dated 30-12-2002 (Ex.P-2) u/s 106 of the Act, 1882.

It is argued by learned counsel for the appellant/defendant before this Court that the learned first appellate Court has committed serious error of law by reversing the well-reasoned judgment and decree of the trial Court and that approach of the first appellate Court while upsetting the findings recorded by the trial Court is not in accordance with law. Learned counsel for the appellant has also submitted that the appellant is entitled to protect possession u/s 53A of the Act, 1882. According to learned counsel for the appellant, there is no relationship of landlord and tenant after 3-8-1999, therefore, the learned first appellate Court was not correct in decreeing the suit. To buttress his submission, learned counsel for the appellant has relied on the judgments rendered by the Hon''ble Supreme Court in Santosh Hazari v. Purushottam Tiwari (Dead) by LRs. AIR 2001 SCW 723 and Jagdish Singh Vs. Madhuri Devi,

Insofar as the argument regarding the appellant/defendant''s right to protect his possession u/s 53A of the Act, 1882 is concerned, suffice it would be to say that the said right of the prospective purchaser, if he has entered the premises by virtue of a tenancy agreement on a trade prior in point of time than the date on which the agreement to sell was executed, the issue has been set at rest by a recent judgment of the Hon''ble Supreme Court in FGP Ltd. Vs. Saleh Hooseini Doctor and Another, .I may profitably quote paragraphs 23 to 30 of the judgment as under:

The submission by the appellant''s counsel on part-performance of the contract u/s 53-A of the Transfer of Property Act also cannot be accepted. Section 53-A of the Transfer of Property Act is based upon the equitable doctrine of part-performance in English law. Initially Section 53-A was not incorporated in the Transfer of Property Act but the same came by way of an amendment for the first time by the Transfer of Property Amendment Act, 1929 (Act of 1929). The amendment had to be made in view of some divergence in judicial opinion on the application of the aforesaid equitable doctrine by various courts in India Section 53-A of the Transfer of Property Act has certain ingredients and, in our judgment, those are:

(1) a contract to transfer immovable property; (2) the transfer should be for consideration;

(3) the contract must be in writing;

(4) it should be signed by or on behalf of the transferor;

(5) the terms of the contract can be ascertained with reasonable certainly from the writing;

(6) the transferee takes possession of the whole or part of the property or if already in possession continues in possession;

(7) such taking of or continuance in possession should be in part-performance of the contract;

(8) the transferee should do some act in furtherance of the contract;. and

(9) he should have performed, or be willing to perform, his part of the contract.

The rationale of the equitable doctrine of part-performance in English law has been traced in Section 53-A by this Court in Sardar Govindrao Mahadik and Another Vs. Devi Sahai and Others, In para 13, p. 249 of the Report while tracing the said equitable doctrine in the way it has been assimilated in Section 53-A of the Transfer of Property Act, the learned Judges held that the act or action relied upon as "evidencing part-performance" must be of such nature and character that its existence would establish the contract and its implementation. The learned Judges further held that the crucial act or action must be of such a character as to be unequivocally referable to the contract as having been performed in performance of the contract.

In support of the said conclusion, the learned Judges referred to an old English decision rendered in Thynne (Lady) v. Earl of Glengall, 2 HLC 131. In referring to the said case, the learned Judges quoted the observations therefrom and which are reproduced hereinbelow: (Thynne case HL p. 158)

... part-performance to take the case out of the Statute of Frauds, always supposes a completed agreement. There can be no part performance where there is no completed agreement in existence. It must be obligatory, and what is done must be under the terms of the agreement and by force of the agreement...

Relying on the aforesaid principle, the learned Judges in Sardar Govindrao Mahadik reiterated that the act relied upon by the party invoking the said doctrine must be such as by its own force to show the very existence of the same contract.

Applying the aforesaid tests, as we must, to the present situation we find that no case for part-performance of the contract has been made out. Here in the plaint filed in the specific performance suit, the case of the appellant is that it was put in possession of the suit premises pursuant to the tenancy agreement dated 16-7-1981 and hot on the basis of any other agreement. If we look at the tenancy agreement, we will not find that the appellant was put in possession under the same. In the said suit no evidence appears to have been led by the appellant to show how it came to the possession of the suit premises. This aspect of the case is quite vague.

Apart from that according to the appellant it allegedly paid Rs. 5 lakhs as sale consideration for the suit premises. As already pointed out in Para 2 of the plaint in the specific performance suit, it has been clearly averred that the said amount of Rs. 5 lakhs was kept in deposit with the original owner of the premises by way of security deposit in terms of the tenancy agreement dated 16-7-1981. In any event, the appellant is required to show that it either performed or is willing to perform of the contract. But admitted facts of the case are to the contrary.

After the execution of the alleged agreement for sale dated 20-7-1981, the appellant was totally silent and it is only after more than 10 years thereafter i.e. on 19-8-1991, for the first time, it asked the owner to complete the sale and that too after the ejectment suit was filed in February 1991 by the owner.

Thus, in the facts and circumstances of this case, the doctrine of part-performance u/s 53-A cannot be invoked. Therefore, there is no merit in the argument advanced on behalf of by the appellant on that score.

Applying the said ratio to the facts of the present case, this Court finds that the appellant/defendant has not preferred any suit for specific performance. From 3-8-1999 to 6-2-2003, i.e., from the date of agreement to sell till the date of filing of the present suit, the appellant/defendant never made any effort compelling Surendra to execute the sale-deed and in spite of service of notice on Surendra, a suit was not preferred before filing of the present suit by the plaintiff on 6-2-2003. Apart from this, it is not the case of the appellant/defendant that he was inducted and handed over possession of the suit premises by virtue of agreement to sell dated 3-8-1999. On the contrary, it is an admitted position that he came into possession of the suit property in pursuance to the tenancy agreement dated 1-10-1989 with the plaintiff Smt. Ram Pyari Bai. It is not the case of the defendant that the quit notice dated 30-12-2002 (Ex.P-2) u/s 106 of the Act, 1882 suffered from any legal infirmity. When the defendant admits the relationship of landlord and tenant with the plaintiff at the beginning of the tenancy, he is precluded from challenging the tenancy and raising a plea that it has ceased to operate by any act between himself and some other person who has not inducted him into the tenanted premises. There is no evidence on record to reach to the conclusion that the plaintiff, by any express act, has determined the tenancy with effect from 3-8-1999. The fact that Surendra is the owner of the property would also not determine the tenancy when the landlord, who has inducted the tenant, has not expressly determined the tenancy by terminating the written tenancy agreement.

In P. Veerappa Vs. M.A. Mohammed Amanulla, , the Hon''ble Supreme Court has dealt with a similar issue, wherein the subsequent agreement to sell was between the landlord and tenant and a suit for specific performance was filed and compromised, however, upon failure of the tenant to adhere to the terms of the compromise, the landlord preferred a suit for eviction and the contention of the tenant that the tenancy agreement has merged into the agreement to sell, the Hon''ble Supreme Court held that once the terms of the compromise have not been adhered, the tenant''s pre-existing right as a tenant stood revived and the parties were bound by the relationship of landlord and tenant and the rent controller was entitled to proceed with the matter in accordance with law.

In the present case, firstly the agreement to sell (Ex. D-4) is not between the landlord and the tenant, therefore, there is no question of merger of tenancy agreement (Ex.P-1) into the subsequent agreement to sell (Ex.D-4) and secondly in the agreement to sell (Ex.D-4) there is no recital that the possession of the tenant henceforth would be as a prospective purchaser. On a reading of the agreement to sell (Ex.D-4), it would rather appear that the tenant has accepted his status as a tenant and even though according to the tenant, Surendra was receiving the rent, there is no recital that the tenant would stop paying rent from the date of agreement to sell.

This Court, therefore, finds no substance in the argument of learned counsel for the appellant/defendant that the tenancy had come to an end on 3-8-1999 when the agreement to sell (Ex.D-4) was entered between Surendra and the tenant/defendant.

Insofar as the argument of learned counsel for the appellant/ defendant as to improper exercise of jurisdiction u/s 96 of the CPC by the first appellate Court is concerned, on perusal of the impugned judgment, it would clearly appear that the learned first appellate Court has considered the core issue of cessation of tenancy and the termination of landlord and tenant relationship between the parties and has extensively considered the oral as well as the documentary evidence and has thereafter recorded the finding that the tenancy subsists. The first appellate Court has also dealt with the issue regarding availability of benefit of protection to the tenant u/s 53A of the Act, 1882 and after discussing the said contention in paragraphs 31 to 36 of its judgment, it has found that the said protection is not available to the tenant. In the opinion of this Court, the learned first appellate Court has dealt with the two most important issues of continuance of tenancy and applicability of Section 53A of the Act, 1882, therefore, the impugned judgment and decree passed by the first appellate Court does not suffer from any error of exercise of jurisdiction u/s 96 of the Code of Civil Procedure.

In the present case, the learned first appellate Court has only applied the correct legal position applicable in the facts of the case and the approach of the first appellate Court is neither perverse nor suffers from any error of jurisdiction. The first appellate Court on legal principles, has allowed the appeal filed by the plaintiff/landlord.

There is no substantial question of law arising for determination in this appeal. The second appeal fails and is hereby dismissed at the admission stage itself.