Research › Search › Judgment

Allahabad High Court · body

2006 DIGILAW 1963 (ALL)

YADAV MOTORS v. HITENDRA KUMAR AHUJA

2006-08-18

PRAKASH KRISHNA

body2006
JUDGMENT Hon’ble Prakash Krishna, J.—This is tenants’ revision under Section 25 of the Provincial Small Causes Court Act against the judgment and decree dated 13th August, 2004 passed in SCC Suit No. 13 of 1997, whereby the trial Court has decreed the suit for recovery of arrears of rent amounting to Rs. 2,46,900/-, damages amounting to Rs. 16,200/- and future damages at the rate of Rs. 300/- per day and also for ejectment of the defendants/tenants, who are applicants in the above revision. 2. Hitendra Kumar Ahuja and A.K. Ahuja the two brothers instituted SCC suit No. 13 of 1997 against the present applicants and Rajpal Singh Yadav, defendant/proforma respondent No. 3 in the revision on the allegations that they let out the disputed show room/property to the defendants on a monthly rent of Rs. 9000/-. The defendant No. 1 is partnership firm and defendant Nos. 2 and 3 are the partners. Initially monthly rent used to be paid by single cheque in their joint names subsequently on the ground of convenience, it was agreed upon by the defendants/tenants that they would pay separate cheques to each plaintiff at the rate of Rs. 4,500/- per month. The defendants had paid the rent up to September, 1994 to the plaintiff No. 1 and up to November, 1994 to the plaintiff No. 2 and thus, the rent up to October 1994 stands paid up. The defendants defaulted in payment of rent since November, 1994 inspite of the repeated demands and a notice terminating the tenancy dated 3rd January, 1997 was sent which was personally served on 13th January, 1997 on defendant No. 1 and on 21st January, 1997 on defendant Nos. 2 and 3. They have failed to vacate the premises in question after the expiry of 30 days from the receipt of the notice. The plea that the provisions of U.P. Act No. 13 of 1972 are not applicable as the monthly rent is more than Rs. 2,000/- hence the building is exempt was also pleaded. 3. In the written statement relationship of landlord and tenant between the parties with respect to the tenanted property was admitted vide its para 1. It was also admitted that the defendants agreed to pay half and half rent to each plaintiff and pleaded that in this view of the matter the plaintiffs should have filed separate suits and the present suit is not maintainable. It was also admitted that the defendants agreed to pay half and half rent to each plaintiff and pleaded that in this view of the matter the plaintiffs should have filed separate suits and the present suit is not maintainable. The suit was mainly contested on the pleas that the defendants are not liable to pay any rent since November, 1994 on the ground that an oral agreement to sell, was entered into between the parties in the month of November, 1990, with respect to the disputed property for Rs. Five lac in order. The plaintiffs agreed to sell the disputed property as they were in need of money to discharge their financial obligations to Bank. But the plaintiffs after receiving the amount from the defendants failed to pay it to the Bank. The defendants are in occupation of the disputed property since November, 1994 as its owners. The relationship of landlord and tenant between the parties has come to an end and the suit is barred by Section 53-A of the Transfer of Property Act, vide paras 23, 23-A, 23-B and 24 of the written statement. It was further pleaded that the defendants got their names mutated in the property register of Nagar Palika, Meerut. 4. The parties led oral and documentary evidence in support of their respective cases before the trial Court. The defendants in spite of the repeated opportunities granted to them chose not to appear and participate in the final hearing of the suit. The defendants felt themselves satisfied by filing written arguments and did not advance oral arguments. The trial Court by its judgment and decree dated 9th August, 2004 decreed the suit on the finding that the theory of payment of Rs. Five lac as sale consideration in pursuance of an oral agreement is not proved. It concluded that there is no convincing evidence to establish that any such agreement to sell between the parties was entered into or was ever acted upon. It also rejected the plea of the defendants that both the plaintiffs should have instituted separate suits as it was found that contract of tenancy between the parties was one. It in the absence of any documentary evidence and on the basis of the attending facts and circumstances of the case disbelieved the case of the defendants that a sum of Rs. Five lac was given in three instalments. It in the absence of any documentary evidence and on the basis of the attending facts and circumstances of the case disbelieved the case of the defendants that a sum of Rs. Five lac was given in three instalments. The service of the notice determining the tenancy was held sufficient as it was personally served on the defendants and the suit was decreed accordingly. 5. Feeling aggrieved against the aforesaid judgment and decree, the present revision is at the instance of defendant No. 1, M/s Yadav Motors and defendant No. 2 Kunwar Pal Singh Yadav. Defendant No. 3 Sri Rampal Singh Yadav has not come forward to challenge the judgment and decree of the Court below. 6. Heard Sri Rajeshwar Yadav, along with Sri R.K. Saxena, learned Counsel for the applicants and Sri M.K. Gupta along with Sri Madan Mohan, learned Counsel for the opposite parties. 7. The applicants hereinafter described as tenants, and opposite parties are described as landlords. 8. Learned Counsel for the tenants submitted that the suit was not maintainable before the Judge Small Causes Court, in view of the fact that only a vacant piece of land was let out. Elaborating the argument they invited the attention of the Court towards para 1 of the plaint and laid emphasis on the words “land in question” and submitted that the suit was not maintainable before the Court below. Further it was submitted that the trial Court has committed illegality without adjudicating the question of jurisdiction proceeded to decide the suit on merits. Therefore, the judgment of the trial Court cannot be sustained. It was also submitted that the question of title was also involved in the present case and, therefore, in view of Order 14 Rule 1, C.P.C. the plaint should have been returned to the Civil Court for decision on the regular side and it was wrongly tried as a suit of small causes nature. 9. In reply Sri M.K. Gupta, learned Counsel for the landlords invited the attention of the Court towards contents of notice given under Section 106 of the Transfer of Property Act, through which the tenancy of the defendant/tenants was determined. In para 1 of the notice, property in dispute has been described on the foot of the notice and eviction of the defendants/tenants was sought from the said property. In para 1 of the notice, property in dispute has been described on the foot of the notice and eviction of the defendants/tenants was sought from the said property. The description of the property in the notice is the same as in the plaint. The case of the landlords is that they are two brothers and purchased the properties by different sale deeds from the different owners some times in the year 1976. After purchase of the property both the brothers jointly raised construction of an office cum godown on the lands thus, purchased by them and office cum godown was let out by them on a monthly rent of Rs. 9,000/- in July 1989 to the tenants. It is also the common case of the parties that there is no demarcation. A rent agreement in the month of June, 1989 was written into. Subsequently, a second agreement was arrived at in September, 1994 on stamp paper of Rs. 100/- effective from March, 1994 and it was agreed upon that onwards the tenants would pay rent half and half separately to each landlords and the defendant/tenants started paying the rent accordingly. 10. The following four points were mooted by the Counsel in support of the revision : (1) The subject matter of the suit being “land” vide para 1 of the plaint, the suit before Judge Small Cause Court for ejectment and recovery of rent/damages etc. was not maintainable. (2) Each plaintiff landlord should have filed separate suit and the frame of suit being defective is liable to be dismissed. (3) The tenants are in occupation of the disputed premises in part performance of contract to sell and as such their occupation is protected under Section 53-A of the Transfer of Property Act. (4) The Court has not given the credit of certain cheques, admittedly received by the plaintiff/landlords. Point No. 1 11. Scrutiny of pleadings to find out what was let out—a piece of land or accommodation is essential. 12. Much capital was sought to be made by the learned Counsel from para 1 of the plaint, wherein it has been stated that the plaintiffs are the exclusive owners and landlords of the land in question, which has been described at the foot of the plaint. 13. 12. Much capital was sought to be made by the learned Counsel from para 1 of the plaint, wherein it has been stated that the plaintiffs are the exclusive owners and landlords of the land in question, which has been described at the foot of the plaint. 13. The said paragraph is reproduced below : “That the plaintiffs are exclusive owner and landlord of the land in question which has been described at the foot of this plaint”. 14. The description at the foot of the plaint reads as follows : “Details and boundaries of property No. 187, Rithani, Delhi Road, Meerut city which is under the tenancy of defendant is as follows : Part of the building (The office block in the front and half of the workshop/Tin shade in the back of it) on a plot of 3000 sq. mtrs. on main Delhi Meerut Road with the following boundaries. North : Passage for the back portion thereafter factory of 77 Soft Drinks and Property of Vishal Electricals. South : Indochem Laboratories. East : Owner’s rest of the portion of the building. West : Delhi Road thereafter show room of Mitushibishi Center, M/s Chaitanya Automobiles.” 15. In the entire written statement there is not a single word to show that the property which was let out to the tenants was an open piece of land. 16. It is an acknowledged proposition that a word or sentence of a pleading should not be read in isolation divorced from the context. No doubt it would have been more appropriate instead of word land word building should have been written but on a conjoint reading of aforesaid paragraph 1 with paragraph 8 and 9 of the plaint as also the relief claimed in the plaint and the details of the property described at the foot of the plaint leaves no manner of doubt that the suit was instituted for eviction of defendants/tenants with respect to accommodation which consists of part of building as described at the foot of the plaint. This further fortifies from the fact that there is no averment in the written statement that the only vacant piece of land was let out and not an accommodation. The trial of the suit proceeded on the footing that the plaintiffs/landlords are seeking eviction of the defendant/tenants from accommodation which consists of building. This further fortifies from the fact that there is no averment in the written statement that the only vacant piece of land was let out and not an accommodation. The trial of the suit proceeded on the footing that the plaintiffs/landlords are seeking eviction of the defendant/tenants from accommodation which consists of building. The plaintiff No. 1 H.K. Ahuja has examined himself as PW1 and in his examination-in-chief he has stated that after purchase of land by the plaintiffs they jointly got constructed the house cum godown, which was let out to the tenants/defendants on the monthly rent of Rs. 9,000/-. There is no cross-examination on the point by the defendants that only a vacant piece of land was let out and not a show room cum godown. The statement of Kunwar Pal Singh Yadav DW1, one of the defendant tenants is also relevant wherein he has stated that he took the entire show room which was given by the plaintiffs jointly. In this view of the matter it is almost admitted case of the parties that the property in dispute which was let out was an accommodation and eviction is being sought from the said accommodation and not from a vacant piece of land. 17. There is no evidence either oral or documentary nor is there any pleading on behalf of the defendants/tenants that only vacant piece of land was let out to them. Thus, it is established on record that the defendants were tenants in respect of a building and as such the contention that only a vacant piece of land was let out and, therefore, the Judge Small Causes Court has no jurisdiction is meritless being without substance. It is not in dispute that the Judge Small Causes Court has jurisdiction to try the suit for ejectment, recovery of arrears of rent and damages in respect of building/accommodation. In this view of the matter the first point of the learned Counsel for the tenants (applicants) fails. Point No. 2 18. Then it was urged that single suit on behalf of the plaintiffs was not maintainable. It was urged that the notice under Section 106 of the Transfer of Property Act is also invalid on the ground that it was given jointly by the plaintiffs. Point No. 2 18. Then it was urged that single suit on behalf of the plaintiffs was not maintainable. It was urged that the notice under Section 106 of the Transfer of Property Act is also invalid on the ground that it was given jointly by the plaintiffs. Learned Counsel for the tenants pointed out that it is admitted case of the plaintiffs that they purchased separate pieces of land from the different owners. He, therefore, submitted that they should have filed separate suits in respect of their separate share seeking ejectment of the defendants/tenants. Great emphasis was laid on the statement of P.W.1, who stated that there has been no demarcation of the property on the spot and half belongs to him and the another half to his brother Anil. But the fact remains that the tenants came into possession of the disputed property on joint letting by the plaintiff landlord and the contract of tenancy is one, therefore, the said contention has no merit and is liable to be rejected for the simple reason that the defendants/tenants are bound by their admission and they are estopped to challenge the title of the landlords in view of Section 115 Evidence Act. In para 1 of the written statement the relationship of landlord and tenant between the parties with respect to the disputed property is admitted. In view of this specific admission in the pleading of the defendants/tenants it is no longer open to them to argue that the plaintiffs should have brought the separate suit in respect of their respective shares. The contract of tenancy is one. The contract of tenancy in between the parties is one and one only. It is the own case of the parties that the defendants took the disputed property on rent in pursuance of the rent agreement, dated 1st July, 1989 followed by second rent agreement dated 1st September, 1994. In this regard the statement of Kunwar Pal Singh Yadav D.W.1 is also relevant. In his statement he has deposed that in the beginning when he took the disputed property on rent the landlords jointly accepted Rs. 9,000/- as rent. After 2-3 years they demanded that since the brothers are co-sharers disputed property, therefore, he should given the rent separately in equal share. He has further stated that it was not made clear to him which portion of property belongs to whom. 9,000/- as rent. After 2-3 years they demanded that since the brothers are co-sharers disputed property, therefore, he should given the rent separately in equal share. He has further stated that it was not made clear to him which portion of property belongs to whom. The entire show room was let out to him. 19. The relevant portion from the statement of DW 1 is reproduced below : “JAB HAMNE SHURU MAI KIRAYA PAR LIYA THA TAB INHONE IKKATTHA 9000 (NAU HAZAR RUPIYA) EK SATH LE LIYA THA. 2-3 SAL BAD INHONE KAHA KI HAM DONO BHAIYON KI PROPERTY ALAG ALAG HAI. HAMEIN ALAG ALAG KIRAYA DO. YE NAHEIN BATAYA KI KAUN SI PROPERTY KIS KIS KI HAI. POORA SHOW ROOM HI SAB IKKATHTHA DIYA GAYA THA.” 20. From the above portion of the statement of DW 1 it is crystal clear that the tenancy was one and two brothers entered into the contract of single tenancy with the defendants to let out the disputed property as a whole. The contract of tenancy being one, the suit for determination of tenancy is maintainable irrespective of the fact that subsequently the defendant/tenants started paying rent in equal share to the plaintiffs separately who are brothers. This arrangement for making the payment separately was adopted by the plaintiffs for the sake of convenience to which the defendants/tenants also agreed upon. The defendants/tenants started paying the rent half and half to the plaintiffs/landlords. The pleadings to this effect can be find out in para 2 of the replica, dated 27th March, 1999 and also para two of the second replica dated 13th March, 2002. 21. The case of the plaintiffs is that the building in question was constructed by them jointly on their land without any demarcation and was also let out as one tenement. There is no evidence to the contrary on behalf of the defendant/tenants. The contract being one and the fact that subsequently the tenant acceded to the request of the landlords to pay the rent them separately in equal shares would not convert a single contract of tenancy into two separate contracts of tenancies. Point No. 3 22. There is no evidence to the contrary on behalf of the defendant/tenants. The contract being one and the fact that subsequently the tenant acceded to the request of the landlords to pay the rent them separately in equal shares would not convert a single contract of tenancy into two separate contracts of tenancies. Point No. 3 22. Then it was urged that the Court below has erred in law in decreeing the suit for recovery of arrears of rent, damages and ejectment of defendants/tenants inasmuch as the jural relationship of landlord and tenant between the parties has come to an end on 1st November, 1994 when the plaintiffs entered into an agreement with the defendant to the same disputed property for a consideration of Rs. Five lac, which was paid by the defendants/tenants in cash to them. Plea that the suit is barred by Section 53-A of the Transfer of Property Act was also pressed into service. In this regard the allegations made in the written statement and evidence in support thereof requires consideration. Vide para 21 of the written statement it has been pleaded that the plaintiffs/landlords had taken loan from the nationalized Bank and mortgaged the disputed property by way of security and Bank had instituted a suit for recovery of the debt amount. Consequently, the plaintiffs in October 1990 offered to the defendants to purchase the disputed property to enable them to clear of their financial liability toward the Bank. The agreement of sale was arrived at in the month of November, 1990 and it was agreed upon that the defendants/tenants would pay a sum of Rs. Five lac in instalments as agreed upon. The said amount was paid in three instalments, but the plaintiffs/landlord failed to discharge their financial obligation on one pretext or the other and ultimately in the month of November, 1994 it was agreed upon between the parties that the defendants/tenants would not be liable to pay any rent subsequent to October, 1994. Resultantly, the defendants/ tenants are not liable to pay the rent from November, 1994 onwards and they are in occupation of the disputed property in part performance of contract to sell and are entitled to protect their possession under Section 53-A of the Transfer of Property Act. Resultantly, the defendants/ tenants are not liable to pay the rent from November, 1994 onwards and they are in occupation of the disputed property in part performance of contract to sell and are entitled to protect their possession under Section 53-A of the Transfer of Property Act. The relationship of landlord and tenant, thus, between the parties has come to an end and the suit as framed being not maintainable is liable to be rejected. The aforesaid plea has not been accepted by the trial Court on making analysis of the evidence on record. Without pointing out any error in the judgment of the Court below, it was submitted by the learned Counsel that as the tenants failed to participate in the hearing of the suit, it is in the interest of justice that this Court should examine the evidence in depth. 23. At the very outset it may be stated here that indisputably there is no written document or writing of any such agreement to sell in between the parties. For invoking the provisions of Section 53-A of the Transfer of Property Act, which is also known as doctrine of part performance one of the essential conditions is that the agreement must in writing signed by the transferee or on his behalf from which the terms necessary to construe the transfer can be ascertained with the reasonable certainty. Obviously, the alleged agreement to sell in question lacks the essential ingredients of Section 53-A of the Transfer of Property Act. The argument of estoppel and acquiescence in the absence of written agreement raised by the tenants is liable to be rejected being untenable in the law. Having noticed the legal position with regard to the above plea of doctrine of part performance, evidence of payment of Rs. Five lacs and the terms and conditions, if any, of the alleged agreement, are also proved or not needs to be examined. 24. On the factual aspect of this issue the learned Counsel for the defendants/tenants with all vehemence at his command submitted that the agreement in question is established from the surrounding circumstances i.e. the recording of the name of the defendants/tenants in the property register of Nagar Nigam. Before considering the documentary evidence it is desirable first to have a look to the oral evidence produced by the parties on his issue. Before considering the documentary evidence it is desirable first to have a look to the oral evidence produced by the parties on his issue. The plaintiffs/landlord have categorically denied any such agreement in their pleadings. Their stand in the pleadings is firm and they have reiterated the same even in the two replications filed subsequently on account of the amendments allowed in the written statement from time to time. They have pleaded that they neither negotiated with the defendants to sell the property in question in October, 1990 or at any time thereafter ever agreed to sell the property for Rs. Five lac and thus, the story narrated by the defendants in their written statement is incorrect. The pleadings of the defendants tenants in this regard has already been noted in the opening part of this judgment and it is not necessary to repeat them. 25. To prove the payment of Rs. Five lac, the defendants/tenants examined three witnesses, Kunwar Pal Yadav DW 1, Jagdish DW 2 and Mange Lal DW3. According to them a sum of Rs. 1,00,000/- was given in January, 1991, Rs. 2,50,000/- was given in March,1991 and the remaining Rs. 1,50,000/- was given in 1993. The trial Court has noticed the contractions in between the statement of DW 2 and DW 3 and disbelieved their version. The trial Court has taken into account while recording its finding on the above point that the parties are literate persons and they had earlier entered into the contract of tenancy in writing twice. The payment of rents were being made through cheques, as admitted by both the parties. In this state of affairs it does not appeal to reason that the defendants/tenants would pay such a huge amount in cash without obtaining any receipt. There is no explanation as to why the alleged money was given in cash and not through cheques or bank drafts. Interestingly, that there is no receipt of any kind evidencing the receipt of any amount towards payment of Rs. Five lacs issued or signed by or on behalf of the plaintiffs/landlords. The trial Court in the light of above facts rightly disbelieved the payment of Rs. Five lacs. Interestingly, that there is no receipt of any kind evidencing the receipt of any amount towards payment of Rs. Five lacs issued or signed by or on behalf of the plaintiffs/landlords. The trial Court in the light of above facts rightly disbelieved the payment of Rs. Five lacs. Apart from the above Kunwar Pal Singh DW1 stated that an oral agreement was entered into in the year 1991, but his other witnesses who are smarter deposed that the agreement was entered into in the month of November, 1990. This contradiction certainly doubts the veracity of the defendants/tenants’ contention. In the absence of any cogent and reliable evidence on behalf of defendants/tenants, the findings recorded by the trial Court that the defendants have failed to prove the payment of Rs. Five lac, is essentially a finding of fact which is based on appreciation of evidence. The trial Court has arrived at the aforesaid finding after correctly appreciating the material on record. Besides above the oral deposition made by and on behalf of the defendants, there is no evidence to show the payment of Rs. Five lac to the plaintiffs/landlords. The trial Court has rightly disbelieved the defendants’ deposition on this point and it is not open to this Court in exercise its revisional jurisdiction to come to a conclusion especially when the said approach of the Court below has not been shown to be perverse or based on ignorance of any relevant material on record. 26. Now I take up the question of mutation of the name of the defendants in the property register of Nagar Nigam record. Only two documents of Nagar Mahapalika were referred by Sri Yadav during the course of arguments. The first document is the tax assessment list. The name of Yadav Motors is recorded in column No. 4. The heading of column No. 4 in Dev Nagri Script is—Malik Ka Nam, Pita Ka Nam, Pata (Aur Agent Agar Koi Ho), it means that the name of the owner, father’s name, address (and agent if any). Against the aforesaid entry, as stated the name of Yadav Motors finds place. On the strength of this document it was argued that the defendants/tenants have become owner of the property in question in pursuance of the oral agreement to sell. The said argument is fallacious and has no legs to stand. Against the aforesaid entry, as stated the name of Yadav Motors finds place. On the strength of this document it was argued that the defendants/tenants have become owner of the property in question in pursuance of the oral agreement to sell. The said argument is fallacious and has no legs to stand. On a careful reading of column No. 4 it is clear beyond doubt that besides the name, address and parentage of owner it also provides the recording of name of agent if any. Thus recording of the name of Yadav Motors in the said assessment list does not conclusively show that it was recorded as owner, may be as an agent. It was for the tenants, by filing the copies of application for mutation etc. to establish that the change of name of ownership was there consciously. They could have produced the assessment file. The Yadav Motors was the tenant in the year, 1991 of the plaintiffs/landlords and in that capacity their names appear to have been entered into in the assessment list though wrongly in column No. 4 in place of column No. 6 meant for recording the name of tenant. Further the said document is of year 1991. According to own case of tenant they became the owner of the property since Nov. 1994. The names of the tenants (Yadav Motors), thus, could not be recorded as owners in the year 1991, w.e.f. 1.4.1991. 27. It may be placed on record that a copy of the said assessment list has been annexed as Annexure-3 to the amendment/modification application No. 236131 of 2004 does not appear to be correct copy. The plaintiffs/landlords have filed a photostat copy of the certified copy of the assessment list in their paper book. From the photostat copy of the certified copy filed in the paper book it is clear that the name of “Yadav Motors” is recorded in column No. 4 and not column No. 3, which deals only with the property details. The said column has been left blank in the photostat copy of the certified copy of other document. 28. The another document relied upon before this Court is Form No. 2 of Nagar Nigam, Meerut which is dated 31st March, 1997, is a receipt evidencing payment of Rs. 5,000/-. The said receipt is also of little consequence. The said column has been left blank in the photostat copy of the certified copy of other document. 28. The another document relied upon before this Court is Form No. 2 of Nagar Nigam, Meerut which is dated 31st March, 1997, is a receipt evidencing payment of Rs. 5,000/-. The said receipt is also of little consequence. Under the U.P. Nagar Mahapalika Adhiniyam, the Nagar Nigam or a local body is authorized to realize and recover house tax etc. from the person who is an actual occupant of the property irrespective of the fact that he is not its owner. The said receipt at the most shows that the defendants/tenants paid Rs. 5,000/- towards house tax and nothing beyond it. At any rate the said receipt does not show even remotely the title, if any, of the defendants/tenants with respect to the property in question. It may be noted that the said receipt is of 31st March, 1997 i.e. subsequent to the notice determining the tenancy being 3rd March, 1997, Ext. 1, which was served on 13th January, 1997 on the defendants. Both the aforesaid documents do not advance the case of the defendants/tenants any further and are hardly relevant to support their version of part performance. The fact that in the House Tax Assessment Extract, the name of Yadav Motors finds place or payment of Rs. 5,000/- as house tax by the tenants, is hardly sufficient to destroy the title of the landlords in any manner, as they are not documents of title nor it is safe to place any reliance to decide the question of transfer of title to the disputed property. No other document was referred during the course of argument by the tenants’ Counsel. 29. R. Kanthimathi and another v. Mrs. Beatrice Xavier, 2002 (1) ARC 101 (SC), was strongly relied upon for the proposition that relationship of landlord and tenant comes to an end when the landlord entered into agreement of sale with the tenant and accepted major price. The jural relationship between the two persons could be erected through agreement and could be changed through agreement. The Apex Court in the above case held that in such circumstance relationship of landlord and tenant ceased when agreement of sale is executed as the status of the parties becomes as that of purchaser and seller. The jural relationship between the two persons could be erected through agreement and could be changed through agreement. The Apex Court in the above case held that in such circumstance relationship of landlord and tenant ceased when agreement of sale is executed as the status of the parties becomes as that of purchaser and seller. The Apex Court held that once there is agreement of sale between the landlord and tenant relationship as such comes to an end. Even after cancellation of such agreement of sale, the status of tenant is not restored as such. The agreement to sell of the disputed property was not in dispute in the case. The said agreement was repudiated by returning the amount by the landlord who filed a suit for eviction against the tenant thereafter. This fact is clear from paragraph 2 of the report, wherein it has been observed that it is not in dispute that in terms of the said agreement, the total sale consideration was a sum of Rs. 25,000/-, out of this the tenant had paid Rs. 20,000/- to the landlady on the date of agreement itself and the balance of Rs. 5000/- remained to be paid on the date of registration of the sale deed. In this factual background the case was decided. In the case in hand the factual scenario is quite different. Neither the agreement nor the payment of Rs. five lac is established. In addition to above the alleged agreement in question even if it was there being oral and there is nothing to ascertain its terms and conditions, the said agreement is short of the requirements of Section 53-A of the Transfer of Property Act. 30. The other cases relied upon by the tenants Abul Alim v. Sheikh Jamal Uddin Ansari, 1998 (7) SCC 192 and Imambi v. Azeeza Bee, 2001 All CJ 125, are distinguishable and have no application to the facts of the present case. 30. The other cases relied upon by the tenants Abul Alim v. Sheikh Jamal Uddin Ansari, 1998 (7) SCC 192 and Imambi v. Azeeza Bee, 2001 All CJ 125, are distinguishable and have no application to the facts of the present case. Besides the factual aspect of the aforesaid two decisions being different and distinguishable they do not appear with respect lay down the law correctly as held by three Hon’ble Judges in Pramod Kumar Jaiswal and others v. Bibi Husn Bano and others, 2005 SCFBRC 371, wherein it has been held that Abdul Alim Sheikh Jamal Uddin Ansari (supra) laying down the proposition of law that a tenant acquired the right of co-owner or landlord, the tenancy of building got extinguished and the landlord cannot seek eviction of tenant under the Rent Control Act or fixation of fair rent under the Act was not correctly decided. However, it is not necessary for me in this case to dwell upon this issue any further in view of the factual finding recorded in the earlier part of the judgment that the alleged agreement and payment of consideration thereof has not been established. To put it differently it is held that there was no agreement to sell the disputed property by the plaintiffs/landlords to the defendants/tenants. 31. The other case is relied upon by the learned Counsel for the tenant, Harish Chandra and another v. Mohd. To put it differently it is held that there was no agreement to sell the disputed property by the plaintiffs/landlords to the defendants/tenants. 31. The other case is relied upon by the learned Counsel for the tenant, Harish Chandra and another v. Mohd. Ismail and others, 1990 (2) ARC 357, wherein it has been held that the question whether the tin shed standing on the landlords land supported by the landlords house is a building within the meaning of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 can be decided on evidence, Ichcha Ram v. Smt. Parsandi and another, 1990 AWC 1276, wherein it was held that a suit in respect of an open piece of land let out to defendants is not maintainable before the Small Causes Court, Vijay Kumar v. Mukund Das, 2004 (4) AWC 3423 , wherein it was held that for determination of jurisdiction pleadings in plaint only to be considered, Molar Iron Works (P) Ltd. v. Kay Iron Works (P) Ltd. 2004 (4) SCC 285, wherein it was held that power under Section 15 (6) of Haryana Urban (Control of Rent and Eviction) Act, 1973 is wider than 115 C.P.C., are to be noted and need no detailed discussion as they are not at all helpful for decision of issues involved in the revision and are distinguishable on the facts. The other decision relied upon Nalakath Sainuddin v. Koorikadan Sulaiman, 2002 (6) SCC 1 , has been considered by the Apex Court in the case of Pramod Kumar Jaiswal (supra). 32. S. Thangatpan v. T. Padamavathy, (1999) 7 SCC 474 , is an authority for the proposition that a person who has been inducted as a tenant cannot subsequently turn around and say that the landlord at the beginning of the tenancy did not have a title to such property. It goes to the extent that however, the defective title of the landlord may be the tenant cannot deny the landlords title in view of Section 116 of the Evidence Act. In nutshell, neither the oral agreement nor payment of sale consideration in pursuance thereof is established, therefore, Section 53-A of the Transfer of Property Act is not applicable. Point No. 4 33. In nutshell, neither the oral agreement nor payment of sale consideration in pursuance thereof is established, therefore, Section 53-A of the Transfer of Property Act is not applicable. Point No. 4 33. A feeble attempt was made on the basis of the statement of PW 1 that the defendant/tenants had issued certain cheques which were not honoured by the Bank, therefore, the payment under those cheques should be presumed to have been made to the landlord. P.W.1 in his deposition stated that in the year 1996 the defendants/tenants gave two cheques of Rs. 9,000/- to Anil Kumar and of 18,000/- in my name (H.K. Ahuja), but these cheques were not honoured by the Bank and were bounced. From this part of the statement an argument was built up to draw inference of payment of the aforesaid two amounts in favour of the tenants as the tenants cannot prove a negative thing. This is a strange type of argument and is liable to be rejected at its threshold. The tenant Kunwar Pal Yadav DW 1 himself has stated in his deposition dated 27.4.2004 that he got the payment of the aforesaid two cheques stopped. Thus, it is established beyond doubt that the plaintiffs/landlords did not receive the amount under the aforesaid two cheques and the Court below rightly decreed the suit for the recovery of the amount including the two cheques, more particularly when there is no evidence of encashment of the two cheques. 34. Interestingly it may be noted that it is not the case of the defendants/tenants that they have paid any rent/amount after service of notice determining the tenancy. The rent receipts were being issued to the defendants/tenants and they have not produced them to contradict the plea of arrears of rent of the plaintiffs/respondents rather they have come out with the case that the rent receipts which were issued to them have been stolen, as stated by DW 1 in his deposition dated 27.4.2004. Therefore, this plea also fails. Conclusion : 35. In view of above discussion none of the arguments raised by the learned Counsel for the defendant/tenant has merit. The judgment and decree of the Court below does not call for any interference by this Court. 36. Therefore, this plea also fails. Conclusion : 35. In view of above discussion none of the arguments raised by the learned Counsel for the defendant/tenant has merit. The judgment and decree of the Court below does not call for any interference by this Court. 36. Before parting with this case, the conduct of the defendants/tenants in not paying the rent for all these years in spite of the repeated judicial orders by the trial Court as well as by this Court need to be noted. This Court in writ petition No. 53271 of 2002 vide order dated 12.12.2002 directed the defendant/tenant to deposit the monthly rent before the trial Court as required under Order 15 Rule 5, C.P.C. as amended in the State of U.P. with the rider that the plaintiff/landlord would have restricted right to withdraw the sum. The defendant/tenants failed to comply with the conditions of the aforesaid order, with the result the suit proceeded and ultimately decreed. On the stay application filed in this Court in the present revision this Court after consideration of the respective submissions of the learned Counsel for the parties passed a detailed order conditionally staying the eviction of the defendants/tenants directing them to deposit a sum of Rs. 3 lac by 20th December, 2003, Rs. 3 lac by 15th January, 2003, Rs. 3 lac by 20th January, 2005 and the remaining amount of damages by 5th February, 2005 and with further rider to deposit Rs. 9,000/- by each of 10th day of following month in the Court below. It appears by mistake that in place of 20.12.2004 it was mentioned as 20.12.2003 in the order. The mistake was obvious. However, taking undue advance of the aforesaid mistake, modification application was filed being modification application No. 236131 of 2004. The Court corrected the typing mistake of the date 20.12.2003 as 20.12.2004 by order dated 22nd July, 2005.However, the fact remains that not a single penny was deposited by the tenant/defendants. The conditional stay order stood vacated, but in spite of it the tenants are continuing in the occupation. The case was heard subsequently by me on a number of dates and was adjourned to enable the learned Counsel to prepare the case. Even a new Counsel was also engaged to get the case adjourned. However, subsequently the old Counsel was again instructed to argue the case. The case was heard subsequently by me on a number of dates and was adjourned to enable the learned Counsel to prepare the case. Even a new Counsel was also engaged to get the case adjourned. However, subsequently the old Counsel was again instructed to argue the case. By the order dated 20th July, 2006 this Court noted the contention of the plaintiffs/landlords that in spite of the vacation of the stay order the defendants/tenants have neither vacated the premises in question nor have paid any amount towards rent and damages. The order dated 20.7.2006 is reproduced below : “Learned Counsel for the respondents pointed out that the appellant in spite of vacation of stay order has neither vacated the premises in question nor has paid any amount towards rent and damages. Sri R.K. Saxena, advocate, appearing for the applicant shall inform about the above facts to the Court on the next date.” 37. On the next date when the case was taken up again there was no improvement in the situation, resultantly the defendants/tenants is enjoying the accommodation without paying anything towards rent/damages nor it has cleared the decretal amount. It may also be noted here that when the executing Court proceeded to execute the decree for possession and for recovery of decretal amount the same was got frustrated by filing a transfer application making allegations against the Presiding Officer and thus, the defendant/tenant succeeded in obtaining a stay order which was subsequently vacated. The arrears of rent and damages at the agreed rate for the admitted period i.e. w.e.f. Nov. 1994 to July, 2006 comes about Rs. 11,61,000/-. The landlords on being deprived of this amount and as such the tenants should be saddled with the liability to pay simple interest also at the rate of 10% per annum at least from the date of judgment of the trial Court to the date of actual payment as also the damages at the enhanced rate i.e. @ 15,000/- for the period subsequent to August, 2006 till the date of delivery of actual physical possession. An unscrupulous litigant should understand that Court of law may weight heavily against him for approaching the Courts of law with a design not a pay even the rent, and enjoy the property and also involve a lessor in an endless litigation. An unscrupulous litigant should understand that Court of law may weight heavily against him for approaching the Courts of law with a design not a pay even the rent, and enjoy the property and also involve a lessor in an endless litigation. The facts, as discussed above, do disclose that the applicants tenants have earlier filed writ petition, stay application and application for modification and then transfer application and thus succeeded for all these years commencing from 1994 to this date to enjoy the tenanted property without discharging the minimum obligation to pay the rent at least. 38. In view of above discussion, there is no merit in the revision. The revision is dismissed with costs of Rs. 5,000/- (Rs. Five Thousand only). The defendants/tenants will also be liable to pay mesne profits at the rate of Rs. 15,000/- (fifteen thousand only) per month from 1st September, 2006 till the date of actual delivery of possession to the plaintiffs/landlords. 39. The executing Court is hereby directed to recover the arrears of rent, damages, interest mesne profit at the aforesaid rate along with the costs of the revision as indicated above. Revision Dismissed. ———