Research › Search › Judgment

Rajasthan High Court · body

2001 DIGILAW 1680 (RAJ)

L. Rs. of Banshi Lal v. L. Rs. of Noor Mohd.

2001-10-12

PRAKASH TATIA

body2001
JUDGMENT 1. - This is an appeal against the Judgment and decree dated 3.11.1979 passed by learned Addl. Distt. Judge, Bhilwara in civil original suit No. 35/77 (26/75) whereby the learned trial court dismissed the suit of the plaintiff-appellants filed for possession of the disputed property on the basis of decision given on issues No. 9 and 12. 2. Brief facts of the case are that the appellants-plaintiffs filed the suit against the defendants-respondents alleging that defendant No. 1 (subsequently expired) took on rent the disputed shop on 4.4.1954 and executed the rent-deed. The rent of premises was Rs. 133.7/- per month. Plaintiff alleged that above suit shop is required for personal bona fide need of plaintiff and plaintiffs son. Earlier the plaintiffs filed the suit in the year 1964 in the court of Civil Judge on the basis of default in payment of rent and during the pendency of that suit, a new Section 13-K of the Rajasthan Premises Control of Rent and Eviction Act was inserted and the defendants deposited the entire rent upto 31.7.1965 alongwith the cost of the suit. According to plaintiffs, defendants did not deposit rent amount which at the time of filing the suit was due in the defendants for 107 months. Rent due in the defendants was Rs. 14,278/-. It was further alleged by plaintiffs that defendants Sub-leted the shop to the defendant No. 2 and possession of the disputed shop was handed over to the defendants without permission of the plaintiffs. The defendants renounce the character of the tenant and also challenged the title of the plaintiffs, therefore, on these grounds, suit was filed by the plaintiffs. 3. The defendants submitted written statement and stated that in view of document dated 11.9.1967, the disputed premises became property of the defendants. In the above deed dated 11.9.1967, the. plaintiffs sold the disputed property to the defendants and, therefore, there is no relationship of Landlord and tenant between the plaintiffs and defendants. In addition to above, defendants submitted that there is no personal bonafide need of plaintiffs for the suit premises nor they have committed any default in payment of rent. The defendants submitted that they paid Rs. 5000/- in part performance of that sale for the disputed property against the total sale consideration of Rs. 71,000/-. The plaintiffs failed to register the sale-deed in favour of the defendants. The defendants submitted that they paid Rs. 5000/- in part performance of that sale for the disputed property against the total sale consideration of Rs. 71,000/-. The plaintiffs failed to register the sale-deed in favour of the defendants. The defendants were ready and willing to perform their part of contract. The defendants also claimed benefit of Section 53-A of the Transfer of Property Act. 4. The trial court framed as many as 16 issues. Several documents were placed on record by both the parties. The plaintiff gave his statement on oath before the trial court and also produced the witness PW-2 Badri Lal; whereas defendants appeared in witness box and produced witnesses DW-2 Ismyle and DW-3 Barkat Ali. The plaintiffs also examined in rebuttal the evidence of defendants. The trial court decided the issue No. 1 in favour of plaintiffs holding that plaintiffs proved that disputed premises was let-out to the defendants by the plaintiffs on 4.4.1954 in the rent of Rs. 133.7/- per month. The trial court decided issue No. 2 without giving any reason against the plaintiffs merely by saying that even when defendants did not rebutted the evidence of plaintiffs, but the plaintiffs cannot succeed because of the fact that defendants became the owner of the property. While deciding issue No. 3, trial court held that defendants did not pay the rent amount to the plaintiffs. The issue No. 4 was not pressed by the plaintiffs. While deciding issue No. 5, trial court observed that even when defendants claimed his title, even then defendants are not liable for eviction. Issue No. 6 was decided by the trial court holding that simply because there is partnership, it cannot be held that premises was given on some lease. Issue No. 7 was not pressed by the defendants. Issue Nos. 8 and 10 are not pressed by the defendants. Issue No. 11 was decided by the trial court by holding that in view of decision on issues No. 9 and 12 by document dated 11.9.1967, relations of plaintiffs and defendants have come to an end and the plaintiffs are not entitled for decree of possession, the defendants have not pressed the issue No. 14. 5. The trial court decided issues No. 9 and 12 against the plaintiffs. 5. The trial court decided issues No. 9 and 12 against the plaintiffs. Issue No. 9 is with respect to plea of defendants under Section 53-A of the Transfer of Properties Act and issue No. 12 is also with respect to the plea of defendants that in view of execution of document dated 11.9.1967, relations of Landlord and tenant came to an end. 6. The learned Counsel for the appellants challenged the finding of trial court on issue Nos.9 and 12 and submitted first of all that document dated 11.9.1967 has been tampered with in such a manner that it became absolutely void document. The learned Counsel for the appellants submitted that it is clear from document itself that at the bottom of document,Ex.A-1, there are marks which clearly show that something written on the paper was torn out by the defendants for which even the trial court has recorded finding that there are specific impression at the bottom of disputed document Ex.A-1. There is no explanation for having these marks on writing given by the defendants. The trial court merely discarded this important material fact on the ground that last letter of first page, if read with first word of the second page of Ex.A-1, then it makes the sentence complete and, therefore, there cannot be anything in between last letter of Ex.A-1 on page No. 1 and on the reverse of Ex.A-1. The learned Counsel for the appellants submitted that forgery of document if done and a plea is taken, then person who forges or tampers with document will take care to see that it must not done in such a manner, forgery may come out without there being any effort. According to learned Counsel for the appellant, it appears that only by tearing the paper at particular place, then and then only the sentence could have been made to appear complete, therefore, the defendants have no option but to tear the paper at the place from where it was torn out and he could not avoided the impression over the first page. This fact is to be determined whether document was tampered with or not. 7. The learned trial court, ignored the alleged explanation given by the defendants admitting the marks on the bottom of Ex.A-1. This fact is to be determined whether document was tampered with or not. 7. The learned trial court, ignored the alleged explanation given by the defendants admitting the marks on the bottom of Ex.A-1. The defendant only gave explanation that Ex.A-1 was when written, above marks were already on Ex.A-1 and the above paper was already torn out paper and not subsequently torn out by the defendants. Therefore, according to the learned Counsel for the appellant this is admitted fact that paper was torn paper and there are marks of some writing then it was for the defendants to prove the circumstances in which it was torn. 8. I perused the Ex.A-1 and it is undisputed that there are impression on the bottom of paper in such a manner that it clearly discloses that something was written which was torn out subsequently. The explanation given by the defendants that before writing this document, there were above marks already on paper, cannot be believed particularly in view of nature of impression available on the bottom of documents. The document was torn out from the bottom is admitted by the defendant witness DW-1 Ismyle himself in his examination, therefore, the finding recorded by the trial court for Ex.A-1 cannot be allowed to stand simply because that last letter of first page if read with first word of the bottom of Ex.A-1, then it makes the sentence complete and therefore, it was not tampered with. 9. It is true that trial court did consider the statement of witness Banshi Lal. Assuming for the sake of argument that even if statement of Banshi Lal cannot be relied upon, even then tampering of document is clear on the basis of document itself. 10. Now the circumstance in which the above document dated 11.9.1967 was executed and if above document can be used by the defendants against the plaintiffs for the purpose of establishing the defendants' title or for the purpose of taking benefit under Section 53-A of the Transfer of Property Act, it will be relevant to mention here that alleged agreement to sale dated 11.9.1967 is only a document/agreement to sale of property. This agreement has been admitted by the plaintiffs. The consideration was Rs. 71,000/-. The total amount paid against this consideration by the defendants is Rs. 5000/-. This agreement has been admitted by the plaintiffs. The consideration was Rs. 71,000/-. The total amount paid against this consideration by the defendants is Rs. 5000/-. The short period of about 18 days was fixed for execution of sale-deed and for payment of Rs. 66,000/-. The present suit for eviction was filed by the plaintiffs on 10.7.1976 i.e. after about 9 years of the alleged agreement dated 11.9.1967. Admittedly, neither the defendants paid balance amount of Rs. 66,000/- nor filed any suit for specific performance of contract on the basis of above agreement to sale dated 11.9.1967 till the filing of suit by the plaintiff and it is admitted that payment has not been paid by the defendants till today. 11. Section 53-A of the Transfer of Property Act provides that 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 even when document has not been registered and even when there is no instrument of transfer, completing the transfer in accordance with law, even then the transferor shall be debarred from enforcing any right in respect of property. Section 53-A requires a contract signed by the transferor and also requires that transferee either has performed or is willing to perform his part of contract. The transferor is debarred from enforcing any right in the property. The trial court must see whether defendant was ready and willing to perform his part of contract or not in accordance with Section 53-A of the T.P. Act. The defendants have stated that they purchased the property by document dated 11.9.1967 and the relations of Landlord and tenant has come to an end. In para No. 11 of the written statement, defendants No. 1 and 2 every time requested the plaintiffs to execute the sale-deed registered. It is also stated" by the defendants that they were ready to pay the balance amount of Rs. 66,000/- and they never denied to pay the above amount, but plaintiffs did not get the sale deed executed in favour of defendants. It is also stated" by the defendants that they were ready to pay the balance amount of Rs. 66,000/- and they never denied to pay the above amount, but plaintiffs did not get the sale deed executed in favour of defendants. This written statement was filed on 29.7.1976 which is just about 9 years of agreement dated 11.9.1967, therefore, it is clear from written statement that mere saying of defendants he was ready to make payment, there is nothing disclosed by the defendants what steps the defendants took for getting the title in their favour. No totality of fact pleaded by the defendants with respect to their conduct after 11.9.1967 except that there was some oral request for execution of sale-deed to the plaintiffs nothing is there. 12. If the plea taken by defendants is accepted as it is, then it is clear that cause of action accrued to the defendants to take action against the plaintiffs on the basis of agreement dated 11.9.1967 immediately after the execution of agreement, as he started requesting plaintiff to execute the sale-deed but the plaintiff did not execute the sale-deed. 13. The Ex.12 is an application filed by the defendants who were respondents in appeal No. 41/67 filed by the plaintiffs in his earlier suit for eviction against the defendants on the ground of default and in this application, defendants submitted that in view of above agreement dated 11.9.1967, the defendants are in possession of the property as owner of the property and are not liable to pay rent. Reply was filed by the present plaintiffs Ex.13 to the above application wherein the present plaintiffs though admitted that agreement was executed for sale of disputed shop for consideration of Rs. 71,000/- but the balance amount has not been paid, therefore, agreement stands automatically cancelled. This reply was filed on 3.1.1969, therefore, it is clear that plaintiff denied the right of defendants under agreement as early as possible that too on 3.1.1969. Not only this, but the order was passed by the trial court on the plea of defendants on the basis of agreement dated 11.9.1967. The matter came up before this Court in S.B. Civil Appeal Nos. Not only this, but the order was passed by the trial court on the plea of defendants on the basis of agreement dated 11.9.1967. The matter came up before this Court in S.B. Civil Appeal Nos. 353/69 and 83/69 (Banshi Lal v. Noor Mohd.) which were decided by common Judgment dated 2.2.1970 by this Court wherein it was held as under: "There is no question of surrender-express or implied of the lease in the present case." It was further held as under: "It is however, amply clear that merely by execution of the agreement to sell the property in question the interest of the lessor Banshi Lal did not become vested in the lessee Noor Mohd. and by no stretch of imagination can it be said that on execution of the agreement Ex.A-1 (even if it is assumed for the sake of disposal of this appeal that this agreement was executed) the rights of the lesser came to an end. It is too well known that by mere execution of an agreement to sell there is no transfer of interest in the property." 14. Therefore, in view of decision dated 2.2.1970 above mentioned appeals stand concluded on the ground that tenancy right of defendants neither impliedly nor expressly stands surrendered and it is also concluded between the parties that there is no transfer of interest in the property by execution of above agreement to sale dated 11.9.1967. Knowing it well above position, in the year 1970, the plaintiff has denied the right of plaintiffs and court held that when there is no surrender of the Tenancy even then defendants did not choose to file suit for specific performance of contract nor paid the amount to the plaintiffs. Thus from the above facts, it is clear that defendants were never ready and willing to perform their part of contract from the inception of contract. Mere saying that defendants were ready and willing to perform the contract, is contrary to all the facts of the case which show that defendants were never ready and willing to perform their part of contract, therefore, one of the important ingredient of Section 53-A of the Act is missing against the defendants. Section 53-A of the Act is not a provision to help a person to defeat the right of other party even when he is not ready and willing to perform his part of contract. Section 53-A of the Act is not a provision to help a person to defeat the right of other party even when he is not ready and willing to perform his part of contract. The losing of right to recover possession may amounts to loss of title and this cannot be inferred lightly. 15. The defendant in his cross-examination even stated that he served a notice upon the plaintiffs that defendants are ready to make payment to the plaintiffs but he stated that he is not aware after how many days this notice was sent. The defendant stated that they are not having postal receipt. This fact is also if accepted then also it is clear that defendant even after service of alleged notice upon the plaintiff have not taken care or got the registration in their favour. Infact, there is no sufficient pleading and also there is no substantial evidence to prove the fact of ready and willingness of the defendants to perform his part of contract and willingness to execute the sale-deed in his favour, therefore, plea of Section 53-A of the Act is not available to the defendants. The findings recorded by the trial court on issue No. 9 are based upon the fact that after execution of the above agreement, defendants did not pay the rent to the plaintiffs and observed that in pursuance of above agreement, there was no work on the part of defendants which was to be done by the defendants and also observed that since defendants have pleaded in written statement that they were ready to make the payment of Rs. 66,000/- and they stated that they served the notice upon the plaintiffs, therefore, it cannot be expected that defendants ever refused the payment of balance amount but the trial court failed to put the above plea of the defendants to test the credibility of plea because the trial court did not consider the date of agreement, the manner in which the agreement to sale was handled by the defendants, the fact of dispute between the plaintiffs and defendants in previous litigation, denial of plaintiffs, the right of defendants under the agreement as back as in the year 1969 totally in action of the defendants for getting the sale-deed registered in his favour, that filing the suit for specific performance of contract and when these facts are ignored by the trial court, naturally findings recorded by the trial court on issue No. 9 cannot be allowed to stand. 16. The reasonings given by the learned trial court also run absolutely contrary to the settled law that title of property vests to the transferor only on execution of a valid sale-deed by sellor and admittedly no sale-deed has been executed by the owner of the property in favour of the defendants. It is also settled law that no right, title or interest is created by the execution of agreement for sale. This Court has already held between the parties in S.B. Civil Second Appeal Nos. 353/69 and 83/69 dated 2.2.1970 that there is no surrender of lease by the defendants-expressed or implied and there is no execution of title to the property by the defendants, then only thing remains is that the defendants are tenant and plaintiff is Landlord, therefore, plaintiffs if prove their case, then will certainly liable for decree of possession in their favour. 17. The totality of fact and pleas taken in the suit clearly prove that defendants denied the title to the plaintiffs and also renounce the character of the tenant as well as status of Landlord and also there is no evidence in rebuttal to the personal bonafide need of plaintiffs by the defendants. Admittedly, no amount of rent has been paid by the defendants to the plaintiffs. The findings on issue No. 13 is contrary to the finding recorded by this Court in Judgment dated 2.2.1970 between the plaintiffs and defendants therefore, deserve to be set aside. 18. Admittedly, no amount of rent has been paid by the defendants to the plaintiffs. The findings on issue No. 13 is contrary to the finding recorded by this Court in Judgment dated 2.2.1970 between the plaintiffs and defendants therefore, deserve to be set aside. 18. learned Counsel for the appellant relied upon the judgment of Hon'ble Apex Court in case of Jawahar Lal Wadhwa v. Haripada Chakroberty reported in AIR 1989 SC 606 , wherein the Hon'ble Apex Court held that party must keep contract alive by performing its part of contract and show readiness and willingness in order to claim specific performance. Another Judgment cited by learned Counsel for the appellants is AIR 1982 SC 989 , Sardar Govindrao Mahadik v. Devi Sahai and Ors. wherein Hon'ble Apex Court while considering doctrine of part performance, Applicability, Conditions precedent for-Acts anterior to contract or merely incidental to contract, observed that if party is shown that he is not ready and willing to perform his part of contract, he will not qualify for protection of doctrine of part performance. In another Judgment of , Madhya Pradesh High Court held that defendants had been in possession throughout in his capacity as a tenant and not in part performance of the contract, he could not be heard to say that by reason of the agreement to sell his possession was no longer that of a tenant. 19. The Gauhati High Court in judgment reported in AIR 1989 Gauhati, 39 observed that mere continuance in possession does not satisfy the requirement under Section 53-A and tenant must show that his possession was in pursuance of contract, to get benefit under Section 53-A of the Transfer of Property Act. 20. The Madras High Court in the case of R. Kanthimathi and Anr. v. Beatrice Xavier reported in 1996 AIHC, 3097 held that there was sale agreement of suit premises in favour of tenant--No further action taken by tenants in matter of purchase of premises--Amount alleged to be paid by tenants as advance, returned by landlady, absolute possession not given to tenants in pursuance of agreement than the High Court held Order of eviction on ground of wilful default Legal. 21. 21. In the same way, Karnataka High Court in 1996 AIHC, 2647 held that not taking any further action to get sale deed executed-Merely continuing in possession and carrying out certain repairs would not amount to acts done in furtherance of contract-Defendant hence not entitled to benefit under Section 53-A. 22. The Madras High Court in another case reported in AIR 1925 Madras, 965 (Dakshinamurthi Mudaliar v. Dhanakoti Ammal) held that Acts alleged to constitute, must be referable to contract alone. 23. In view of above decision also, it is clear that tenant cannot be permitted to take a plea of part performance of contract under Section 53-A when he did nothing in furtherance to the contract. Even if a petty amount as earnest money or sale price has been given by the tenant in occupation and continuing in occupation after execution of agreement without taking any step of getting title in his favour, cannot be said to be a person ready and willing merely because he continued in possession or at the time of execution of contract, he paid the some part of money to seller Landlord. The facts of this case clearly show that defendants were not ready and willing to perform their part of contract and in view of above, the Judgments cited by learned Counsel for the respondents delivered in case of Durga Prasad v. Kanhaiyalal reported in 1979 RLW 212 , it does not help the appellant. 24. Therefore, the Judgment and decree passed by learned trial court is set aside and it is held that trial court committed illegality in deciding issue Nos. 9 and 12 against the plaintiffs. The defendants are not entitled to take benefit of Section 53-A of the Transfer of Property Act and there is no termination of tenancy by execution of agreement dated 11.9.1967 and the relation of Landlord and tenant subsist between the plaintiffs and defendants. The plaintiffs are able to prove issue No. 2 in their favour with respect to personal bona fide need of premises for plaintiff and his son, the issue No. 5 is decided in favour of plaintiff as defendant has denied the title of plaintiffs and renounce the character as of tenant and also denied the status of plaintiff as Landlord. The finding on issue No. 6 recorded by trial court is Upheld. The finding on issue No. 6 recorded by trial court is Upheld. The finding on issue No. 13 is also set aside and it is held that defendant has no right to reagitate the issue No. 12 in view of decision of this Court delivered in S.B. Civil Second Appeal Nos. 353/69 and 83/69 decided on 2.2.1970 as in the above Judgment, it has been held that there is relationship of Landlord and tenant between the parties. 25. In view of above findings, appeal of the appellant succeeds, judgment and decree of trial court is set aside. Suit of the plaintiffs is decreed. For possession of disputed property, defendants shall hand over the vacant possession of suit premises after two months of the date of decree to the plaintiffs and suit is decreed for Rs. 18,133/- as arrears of rent against the L.Rs. of defendant Noor Mohd. and suit is also decreed for rent @ 133.7/- rupees per month from the date of filing the suit till the date of recovery of possession by the plaintiffs against the L.Rs. of Noor Mohd. The plaintiffs/appellants shall also be entitled for cost of suit as also cost of appeal.Appeal allowed. *******