Satish vs Daya Shankar

Lok Pal Singh, J

This revision is directed against the judgment and decree dated 24.01.2014 passed by Judge, Small Cause Court / VIIth Additional District Judge, Dehradun, in S.C.C. Suit No. 39 of 2011, "Satish Kumar Vs. Daya Shankar", whereby the trial court has allowed the application (paper no. 18C) filed by defendant/respondent under Section 23 of the Provincial Small Causes Court Act (hereinafter referred to as 'the Act").

Facts necessary for adjudication of the case are that the revisionist/plaintiff filed the aforesaid suit stating therein that the plaintiff is the owner of the suit property. The same was letout by him to the father of defendant late Sri Hari Prasad at the rate of rent Rs. 2,000/- per month. It is further contended that after the death of Sri Hari Prasad, the defendant succeeded the tenancy rights and become the tenant of the plaintiff. The tenant has committed default in payment of rent then notice was issued to him to pay the defaulted payment of rent. It is contended that the property in dispute is within the limits of Nagar Palika, Dehradun and, as such, the provisions of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as U.P. Act no. 13 of 1972 ) as applicable in the State of Uttarakhand are not applicable to the suit property. The respondent/defendant filed his written statement. The fact that the suit property was letout to his father has not been denied, however, it is stated that the respondent is carrying a business in the name and style of M/s National Traders after the death of his father. It is also stated that plaintiff-revisionist himself executed a registered agreement to sell the said property on 18.05.1995 in favour of M/s Ram Jeevan Gauri Shankar, Tabru, District Gurgaon, Harayna for a consideration of Rs. 1,15,000/- each shop and has acknowledged the receipt and adjustment of Rs. 1,05,000/- for each shop and has agreed to execute the sale deeds and has agreed to receive the balance of Rs. 10,000/- for each shop on the date of sale and another was executed by M/s Ram Jeevan Gauri Shankar in favour of the Sachin Gupta son of the revisionist. It is contended that the respondent has taken the suit property @Rs.1,000/- per month on rent from M/s Ram Jeevan Gauri Shankar in the year 1995 and paid the rent to him.

An application under Section 23 of the Act had been filed by the respondent-defendant stating that the plaintiff himself has executed the agreement to sell on 18.05.1995 in favour of Ram Jeevan Gauri Shankar, therefore, the question of title is involved and the suit be returned to the plaintiff to institute regular civil suit in the competent court of jurisdiction. In the said application, it is stated that a suit for ejectment and recovery of rent has been filed by the plaintiff-revisionist claiming himself to the owner of the suit property. The defendant has challenged the relationship of the landlord and tenant. It is also stated that neither the plaintiff-revisionist is owner of suit property nor any relationship of landlord and tenant subsists between them.

The revisionist filed objection to the application filed by the respondent stating therein that the notice was issued to the respondent terminating his tenancy but despite the notice, he did not pay the rent since 01.07.2000 and denied the allegations levelled in the said application.

Learned trial court vide order dated 24.01.2014 has recorded the findings that the suit property has been letout by M/s Ram Jeevan Gauri Shankar to the defendant and this fact has been concealed by the revisionist/plaintiff. The trial Court having considered the stand of the respondent that since the respondent denied the ownership of the plaintiff and relationship of landlord and tenant between them, therefore, returned the plaint under Section 23 (1) of the Act to the plaintiff to institute the competent Court of jurisdiction.

Before further discussion, it is apt to reproduce Section 23 of the Act, which reads as under:

"Return of plaints in suits involving questions of titl e-(1) Notwithstanding anything in the foregoing portion of this Act, when the right of a plaintiff and the relief claimed by him in a Court of Small Cause depend upon the proof or disproof of a title to immovable property or other title which such a Court cannot finally determine, the Court may at any stage of the proceedings return the plaint to be presented to a Court having jurisdiction to determine the title.

The averments made in paragraph 1 of the plaint that the suit property was letout by the revisionist to Late Sri Hari Prasad, this fact has not been denied by the respondent, however, the respondent in his written statement has admitted the fact that suit property was taken by him in the year 1995. It is the case of the respondent that the revisionist has executed the agreement to sale on 18.05.1995 in favour of M/s Ram Jeevan Gauri Shankar. The copy of the agreement is annexed as annexure-6 to the writ petition.

In clause 6 of the agreement, it is clearly stated that at the time of registration of the sale deed first party/plaintiff shall handover the actual possession of the suit property to the second party i.e. M/s Ram Jeevan Gauri Shankar. In clause 7 of the agreement it is also stated that if first party did not execute the sale deed in favour of the second party i.e. M/s Ram Jeevan Gauri Shankar, the second party has a right to executed the sale deed in his favour through the Court and to take possession over the same.

Perusal of the registered agreement to the sale deed dated 18.05.1995 would reveal that the possession has not been delivered to the proposed purchaser in pursuance to the agreement. Neither the title of the suit property transferred by the plaintiff in favour of M/s Ram Jeevan Shankar Prsad nor possession was delivered to it, so, there was no occasion for it to letout the same to the defendant.

Learned counsel for the respondent would submit that in part performance of agreement to sale dated 18.05.1995, the possession was delivered to M/s Ram Jeevan Gauri Shankar but there is no proof filed by the respondent that the possession has been delivered to the M/s Ram Jeevan Gauri Shankar in part performance of the contract.

Section 53(A) of the Transfer of the property Act deals with the possession in part performance.

Sections 53-A of the Transfer of Property Act:-

"53-A.- 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 therefor 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."

Having heard learned counsel for the parties it would be apt to extract Section 91 and Section 92 of the Evidence Act as under:

"91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents .-When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.

Exclusion of evidence of oral agreement.- When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:

Proviso (1) .-Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law.

Proviso (2).-The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. Proviso (3).-The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.

Proviso (4).-The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.

Proviso (5).-Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:

Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract:

Proviso (6).-Any fact may be proved which shows in what manner the language of a document is related to existing facts.

Perusal of Section 91 and Section 92 of the Evidence Act would reveal that any evidence wrongly affecting interest of a party is not to be entertained by the Court of law in the interest of justice. When the terms of any contract, grant or nature of property or any matter in the form of a document have been proved as per Section 91, no statement about a subsequent oral contract should be admitted to contradict or vary the terms of the documents.

Hon'ble Apex Court in the case of Nathulal Vs. Phool Chand reported in 1969 (3) SCC 120 in paragraph no.9 has held as under :

"9. The conditions necessary for making out the defence of part performance to an action in ejectment by the owner are

(1) that the transferor has contracted 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:

(2) that 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;

(3) that the transferee has done some act in furtherance of the contract; and

(4) that the transferee has performed or is willing to perform his part of the contract.

If these conditions are fulfilled then notwithstanding that the contract, though required to be registered, has not been registered, or, 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 is debarred from enforcing against the transferee 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."

At this juncture, it would be apt to reproduce Section 23 of the Provincial Small Cause Courts Act, 1887, which reads as under:

"23. Return of plaints in suits involving questions of title.-

(1) Notwithstanding anything in the foregoing portion of this Act, when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depend upon the proof or disproof of a title to immovable property or other title which such a Court cannot finally determine, the Court may at any stage of the proceedings return the plaint to be presented to a Court having jurisdiction to determine the title.

(2) When a Court returns a plaint under sub-section (1), it shall comply with the provisions of the second paragraph of section 57 of the Code of Civil Procedure and make such order with respect to costs as it deems just and the Court shall, for the purposes of the Indian Limitation Act, 1877 be deemed to have been unable to entertain the suit by reason of a cause of a nature like to that of defect of jurisdiction.

The plaintiff did not deny the factum of letting out the suit property to the father of the defendant specifically in his written statement. The title of the suit property was never transferred in favour of M/s Ram Jeevan Gauri Shankar nor possession was delivered to it by the plaintiff. Mere an agreement does not create any right and title over the suit property, thus, there was no occasion for M/s Ram Jeevan Gauri Shankar to letout the suit property to the respondent/defendant, as such, the story setup by the respondent himself, is unbelievable. Further more, the respondent has not claimed his own title over the suit property, but the trial court did not consider all these aspect of the matter and allowed the application under Section 23 of the Act filed by the respondent.

In view of the above, the trial court has committed illegality in allowing the application under Section 23 of the Provincial Small Causes Court Act and returning the plaint to the plaintiffs to institute the same in civil court of competent jurisdiction. Thus, the impugned order is unsustainable. The same is liable to be quashed. The impugned order dated

01.2014 is quashed. The civil revision is allowed. Matter is remanded back to the trial court with the direction to decide the suit afresh, in accordance with law, as expeditiously as possible, preferably within six months from the date of production of certified copy of this order. It is directed that the parties shall appear before the Court below on 24.09.2019 for proper adjudication of the matter.

No order as to costs.