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2009 DIGILAW 2972 (ALL)

S. S. KAPOOR v. SANJAY

2009-08-27

PRAKASH KRISHNA

body2009
JUDGMENT Hon’ble Prakash Krishna, J.—The present revision is at the instance of a defendant of J.S.C.C. Suit No. 7 of 1981 and is directed against the judgment and order dated 11th of January, 1991 passed by the IXth Additional District Judge, Meerut whereby the said suit for ejectment of the defendant who is applicant herein from the three shops has been decreed. The decree for recovery of Rs.13,600/- as arrears of rent for the period 23.1.1978 to 22.11.1980 and for mesne profit has also been passed. The claim for pendente lite and future mesne profit at the rate of Rs. 400/- per month has also been decreed subject to the payment of Court fees on the execution side. 2. The aforestated suit was instituted by four plaintiffs for ejectment of the defendant applicant from three shops situate in the property No.194, Delhi Road, Meerut on the allegations that the defendant is a tenant on a monthly rent of Rs. 400/- and is in arrears of rent from 1st of December, 1975 and has failed to pay the rent in spite of repeated demands, whose tenancy has been determined by a notice served on him on 23.10.1980. The plea of subletting of the shop was also raised. During the pendency of the suit the plaintiff No. 1 Smt. Kiran Wati expired and was substituted by her heirs and legal representatives. The plaintiffs No. 2 and 3 transferred their shares in the property to the plaintiffs No. 5 and 6 who were added subsequently by the order dated 9th of January, 1987. 3. The suit was contested by filing written statement with the plea that the rate of rent was Rs. 250/- per month and the defendant was not defaulter in payment of rent. The payment of rent made by the defendant is duly entered in his accounts book maintained by him in the ordinary course of business. Moreover, on the date of service of the notice, the defendant was not in any arrears of rent and as such the suit is not maintainable. 4. On the basis of the pleadings of the parties, the following issues were framed : (1) Whether the defendant committed default in the payment of rent? If so, its effect. (2) Whether the rate of rent of the premises in question was Rs. 400/- per month or Rs. 250/- per month? 4. On the basis of the pleadings of the parties, the following issues were framed : (1) Whether the defendant committed default in the payment of rent? If so, its effect. (2) Whether the rate of rent of the premises in question was Rs. 400/- per month or Rs. 250/- per month? (3) Whether the defendant has paid rent up to 31.12.1981 as alleged by him? (4) Whether the defendant has sublet any portion of the premises in question as alleged in the plaint? (5) To what amount and relief, is the plaintiff entitled? 5. The parties led evidence in support of their respective cases. 6. It was found under issue No. 1 that the defendant tenant has committed default and was in arrears of rent on the date of the notice as pleaded by the plaintiffs. Under issue No. 2 with regard to the rate of rent the Court below preferred to believe the case of the plaintiffs that the rate of rent of the premises in question was Rs. 400/- per month. 7. So far as issue No. 3 is concerned, it has been found in paragraph 16 of the judgment that the defendant has failed to prove the payment of rent for the period for which rent has been claimed and has committed default in payment of rent and is in arrears of rent from 23.1.1978. 8. The issue No. 4 regarding the subletting was not pressed and was decided against the plaintiffs. 9. Under issue No. 5 as noticed herein above decree for eviction, recovery of arrears of rent, damages for the use and occupation etc. was passed. 10. Heard Shri Pramod Jain, the learned counsel for the applicant in support of the revision on behalf of the tenant and Shri Muralidhar, learned senior counsel in opposition. 11. Shri Pramod Jain, learned counsel for the applicant tenant has urged the following two points in support of the revision : (1) During the pendency of the revision, he submits, certain new developments have taken place. The parties have entered into a compromise on 21st of March, 2007 under which out of total tenanted area of 255 Sq.Fts. under the tenancy of the applicant, the applicant has vacated 166 Sq. Fts. He was permitted to retain the shop measuring 20 x 15. The parties have entered into a compromise on 21st of March, 2007 under which out of total tenanted area of 255 Sq.Fts. under the tenancy of the applicant, the applicant has vacated 166 Sq. Fts. He was permitted to retain the shop measuring 20 x 15. It was agreed that within a period of one month the second party to the agreement would execute a sale deed in respect of the said shop for a sum of Rs. 3,52,240/- out of which a sum of Rs. 50,000/- was paid in cash at the time of the execution of the agreement. In view of subsequent development, the learned counsel for the applicant submits that relationship of landlord and tenant in between the parties has come to an end, therefore, the decree of the Court below cannot be allowed to stand. The applicant claims that his possession under Section 53-A of Transfer of Property Act. (2) The finding recorded by the Court below that the rate of rent is Rs. 400/- per month or that the defendant applicant has committed default in payment of rent, are not based on correct appreciation of evidence. 12. Except the aforesaid submissions, no other point was pressed by the counsel for either side. 13. Taking the first point first, learned counsel for the applicant submits that in view of the subsequent events which took place during the pendency of the present revision, the decree passed by the Court below has become non-existent. 14. The said agreement states that on 21st of March, 2007 Amarjeet Singh, Smt. Charanjeet Kaur, Shri Aman Preet Singh and Shri Gagan Preet Singh agreed to sell the disputed shop to the applicant (tenant). The first party to the agreement agreed that the applicant would surrender the tenancy rights/possession of the property standing over 166.94 sq.yds. in favour of the landlord and the applicant tenant would retain the possession of only one shop standing over 88.06 sq.yds. The first party to the said agreement is the exclusive owners of the entire property and has a right to transfer the same. The property is free from all encumbrances. It was agreed that within a period of one month the tenant applicant would vacate 166.94 sq. yds. The first party to the said agreement is the exclusive owners of the entire property and has a right to transfer the same. The property is free from all encumbrances. It was agreed that within a period of one month the tenant applicant would vacate 166.94 sq. yds. of land and will hand over its vacant possession to the landlord and the tenant applicant has agreed to purchase the remaining portion of 20 x 15 which consists of one shop, for a sum of Rs. 3,52,240/- out of which a sum of Rs. 50,000/- has been given in cash at the time of the execution of the agreement. The parties would withdraw the cases pending before Meerut Court and Allahabad High Court before getting the sale deed registered. 15. The learned counsel for the applicant submits that the said agreement has been followed by affidavits—one of Amarjeet etc. and another of Shiv Shanker Kapoor filed as Annexure-2. The applicant has surrendered the possession over 166.94 Sq.Fts. and his possession over the shop in question is now in pursuance of the part performance of the aforesaid agreement. Relationship of landlord and tenant in view of the agreement has come to an end. 16. Shri Muralidhar, the learned senior counsel appearing on behalf of the contesting plaintiff opposite parties (landlords) submits that the said agreement is a bogus agreement and was never entered into by the landlords. The agreement being unregistered one cannot be read in evidence. Moreover, the legality and validity of the said agreement will be examined by the appropriate Court whenever any proceedings is taken out by the defendant applicant to enforce the said agreement. The present matter being in revision before this Court under Section 25 of the Provincial Small Cause Courts Act, the Court is required to examine legality, propriety of the order under revision and cannot travel beyond it. The scope of inquiry is confined to the judgment and order of the Court below. In other words, the said agreement cannot be pressed into service in the revision. So far as the delivery of part of the accommodation is concerned, the learned senior counsel submits that the present revision is pending in this Court since the year 1991 and was dismissed in default on numerous occasions. In other words, the said agreement cannot be pressed into service in the revision. So far as the delivery of part of the accommodation is concerned, the learned senior counsel submits that the present revision is pending in this Court since the year 1991 and was dismissed in default on numerous occasions. In pursuance of the dismissal order passed in the revision, the plaintiff-opposite parties proceeded to take the possession of the disputed accommodation, only possession of a part of the accommodation was delivered to them and the tenant took sometime to vacate the remaining part. In the meantime, the revision was restored back to its original number and therefore, the possession of the remaining part could not be delivered. 17. Considered the respective submissions of the learned counsel for the parties and perused the records. 18. At the very outset the terms of the alleged agreement may be noticed. Amarjeet Singh son of Raghubir Singh, Smt. Charanjeet Kaur widow of Shri Labh Singh and Shri Aman Preet Singh and Gagan Preet Singh sons of Labh Singh and Smt. Rauneet Kunwar d/o Shri Labh Singh have been described as first party and Shri Shiv Shanker Kapoor has been described as second party thereof in the agreement. It has been stated therein that besides the first party there are no other co-sharers in the property in question. The first party has agreed to sell to the second party the property in question for a sum of Rs. 3,52,240/- out of which a sum of Rs. 50,000/- was given by way of earnest money to the first party at the time of execution of the agreement in presence of the witnesses. One month time for registration of the sale deed has been provided for. It has been further provided that before getting the sale deed registered, the cases pending before Meerut Court and at Allahabad High Court would be withdrawn by both the parties. Along with the agreement a site plan has been annexed. On a bare look to the said document, the following things may be noticed : (1) It may be noted that there is no prayer for taking the said agreement or the documents as additional evidence in the revision. It may be noticed that the original copy of the said agreement has not been placed on the record of the case. It may be noticed that the original copy of the said agreement has not been placed on the record of the case. Only a purported photostat copy of the agreement has been filed. Why its original copy has not been filed, nobody knows. (2) The agreement is dated 21st of March, 2007 but it saw the light of the day after more than two years as it was filed along with an application No. 129198 of 2009, only on 13th of May, 2009. (3) Explanation, if any, for the delay in filing has not been given. There is not even a single word for not filing the agreement earlier. (4) From the array of the parties in the revision it is evident that besides the first parties Sanjai, Rajiv, Suresh Chand, Rakesh and Alok opposite parties No. 1 to 5 in the revision are the plaintiffs. (5) The agreement has not been signed by any of the above five persons. On the contrary, it has been stated in the alleged agreement that the first parties are the exclusive owners of the property in dispute. The said agreement at the most would bind the first party. (6) The said agreement being not in between all the parties to the litigation will not bind the remaining party. (7) The agreement, indisputably, is not registered under the Registration Act. In Uttar Pradesh an agreement to sell is compulsorily registrable since the year 1977 as per the amendment in Registration Act. 19. At this juncture, the learned counsel for the applicant submits that even if the agreement is not registered, the applicant is in possession of the disputed shop in part performance of the said agreement and therefore, his possession is protected under Section 53-A of the Transfer of Property Act. In this connection he has placed reliance on the following cases : (1) AIR 1979 SC 14 , State (Delhi Admn.) v. Pali Ram; (2) 1992 (3) AWC 1360, Smt. Hamida v. Smt. Humer and others; (3) AIR 1979 Raj 200 , Durga Prasad and others v. Kanhiyalal and others; (4) AIR 1979 Mad 47 , Krishna Pillai Raghavan Pillai v. Velyudhan Pillai Raghavan Pillai and others; (5) JT 2002 (2) SC 24, Shrimant Shamrao Suryavanshi and another v. Prahlad Bhairoba Suryavanshi (D) by Lrs. and others; (6) JT 2002 (1) SC 465, Mool Chand Bakhru and another v. Rohan and others; and (7) AIR 1990 P&H 347 , Smt. Bhajan Kaur and others v. Kanwar Devinder Singh. 20. The sum and substance of the argument of the learned counsel is that in view of the aforestated agreement, the relationship of landlord and tenant has come to an end and his possession is as that of a transferee in pursuance of the part performance of the contract. He submits that the relationship of landlord and tenant between the parties has come to an end. It is difficult to accept the said submission for the simple reason that, admittedly, a decree for eviction and arrears of rent treating the applicant as tenant passed by the trial Court is there. The said decree unless is set aside or its satisfaction is recorded as per Order 21 Rule 2, C.P.C. shall remain in force. A decree for eviction of a tenant cannot be modified or varied unless the satisfaction of the said decree is recorded by the executing Court as provided for under Order 21 Rule 2, C.P.C. The question here is that the decree has not been set aside yet. Whether it can be modified or varied as per terms of alleged agreement is the other aspect of the case. 21. Reference can be made to Padmaben Bansohali v. Yogendra Rathore, AIR 2006 SC 2167 wherein it has been held that adjustment or payment out of Court which is not certified/recorded by Court under Order 21 Rule 2, C.P.C. will not be recognized by executing Court. The relevant paragraph 18 of the Report is quoted below : “The expression “or the decree of any kind is otherwise adjusted” are of wide amplitude. It is open to the parties namely, the decree-holder and the judgment-debtor to enter into a contract or compromise in regard to their rights and obligations under the decree. If such contract or compromise amounts to an adjustment of the decree, it has to be recorded by the Court under Rule 2 of Order XXI. It is open to the parties namely, the decree-holder and the judgment-debtor to enter into a contract or compromise in regard to their rights and obligations under the decree. If such contract or compromise amounts to an adjustment of the decree, it has to be recorded by the Court under Rule 2 of Order XXI. It may be pointed out that an agreement, contract or compromise which has the effect of extinguishing the decree in whole or in part on account of decree being satisfied to that extent will amount to an adjustment of the decree within the meaning of the Rule and the Court, if approached, will issue the certificate of adjustment. An uncertified payment of money or adjustment which is not recorded by the Court under Order XXI, Rule 2 cannot be recognised by the executing Court. In a situation like this, the only enquiry that the executing Court can do is to find out whether the plea taken on its face value, amounts to adjustment or satisfaction of decree, wholly or in part, and whether such adjustment or satisfaction had the effect of extinguishing the decree to that extent. If the executing Court comes to the conclusion that the decree was adjusted wholly or in part but the compromise or adjustment or satisfaction was not recorded and/or certified by the Court, the executing Court would not recognise them and will proceed to execute the decree.” 22. In the above case, the Supreme Court has considered its earlier judgment in Sultan Begum v. Prem Chand Jain, AIR 1997 SC 1006 . In this very case it has relied upon its earlier judgment in M.P. Srivastava v. Mrs. B., AIR 1967 SC 1193 wherein it has been held that it is not necessary that Order 21 Rule 2, C.P.C. will be applicable only when an application for execution at the instance of the decree holder is pending. It has been held that where an application is given by a decree-holder for certification of payment or recording an adjustment, Order XXI, Rule 2 presents no difficulty. Where, however, an application is given by the judgment-debtor to the Court for the certification, the Court has to act judicially. It has been held that where an application is given by a decree-holder for certification of payment or recording an adjustment, Order XXI, Rule 2 presents no difficulty. Where, however, an application is given by the judgment-debtor to the Court for the certification, the Court has to act judicially. It was observed by the Privy Council in Shri Prakash Singh v. Allahabad Bank Ltd., AIR 1929 PC 19 as under : “Sub-rule (2) therefore does contemplate an application by the judgment-debtor; further, it provides for notice being given to the decree-holder, it affords an opportunity for the decree-holder to appear, and it involves a judicial decision by the Court whether the payment should be recorded. Proceedings under Order XXI, Rule 2 are, therefore, not mere empty formality as contended by the respondent, but they are judicial proceedings.” 23. Applying the ratio as laid down above, in the present case the tenant applicant has not got the satisfaction recorded as provided for under Order 21 Rule 2, C.P.C. by approaching the executing Court, the contention that the applicant ceases to be a tenant and is in possession of the disputed accommodation in part performance of agreement to sell cannot be accepted. It is not out of place to mention here that the applicant is in occupation of the disputed accommodation in pursuance of the interim order passed by this Court and not otherwise. At no point of time, the applicant tenant came forward with the case that he ceases to be tenant and therefore, he is not required to obey the terms of the stay order. 24. Now, the plea of doctrine of part-performance as mentioned in Section 53-A of the T.P. Act put forward by the applicant is up for consideration. To qualify for the protection of doctrine of part-performance it must be shown that there is a contract to transfer for consideration immovable property and the contract is evidenced by a writing signed by the person sought to be bound by it and from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty. These are pre-requisites to invoke the equitable doctrine of part-performance. These are pre-requisites to invoke the equitable doctrine of part-performance. After establishing the aforesaid circumstances it must be further shown that the transferee had in part-performance of the contract either 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. There must be a real nexus between the contract and the act done in pursuance of the contract or in furtherance of the contract and must be unequivocally referable to the contract, as held by the Apex Court in Sardar Govindrao Mahadik and another v. Devi Sahai and others, AIR 1982 SC 989 . 25. In Ranchhoddas Chhaganlal v. Devaji Supdu Dorik and others, AIR 1977 SC 1517, the Apex Court has reproduced a passage from Fry on Specific Performance, Sixth Edition, at page 276 which reads as follows : “the acts of part performance must be such as not only to be referable to a contract such as that alleged, but to referable to no other title: and that the acts relied upon as part performance must be unequivocally and in their own nature referable to some such agreement as that alleged.” 26. Recently in D.S. Parvathamma v. Srinivasan, AIR 2003 SC 2342 the Apex Court has approved the decision of Madhya Pradesh High Court in Bhagwandas Parsadilal v. Surajmal and another, AIR 1961 MP 237 . In that case also a tenant in possession entered into an agreement to purchase the house forming subject matter of tenancy. In that connection the Apex Court has observed as follows : “............When a person already in possession of the property in some other capacity enters into a contract to purchase the property, to confer the benefit of protecting possession under the plea of part performance, his act effective from that day must be consistent with the contract alleged and also such as cannot be referred to the preceding title." 27. It has been held by the Apex Court in Biswabani Pvt. Ltd. v. Santosh Kumar Dutta, AIR 1980 SC 226 that where a person is already in possession as a tenant at the commencement of an unregistered lease, he would continue to be tenant from month to month and Section 53-A would not apply where the person remain in occupation of the premises sold to him after the termination of period of lease. A person who continued to be in possession as tenant, cannot take benefit of Section 53-A though subsequently an agreement to sell is entered into between the parties vide Inder Kumar Jobar v. Kailash Devi, AIR 1999 P&H 65 . 28. Applying the above ratio to the facts of the present case, it may be noticed that the applicant claimed that he is in possession of the property in dispute in part performance cannot be accepted even for a moment. He continued to be in occupation of the disputed premises in pursuance of the interim order obtained by him during the pendency of the revision. There is not even any averment to the effect that he is in occupation of the disputed accommodation in the capacity of a transferee and not as a tenant against whom decree for eviction has been passed. 29. It may be noted that the decision of the Apex Court given in the case of Shrimant Shamrao Suryavanshi and another v. Prahlad Bhairoba Suryavanshi (Dead) by L.Rs. and others, (2002) 3 SCC 676 was strongly relied upon by the counsel for the appellant therein but has been distinguished vide para 12 of the report on the ground that in that case the person in possession was so inducted in part performance of the agreement of sale. The Court proceeded with law of limitation barred the remedy but did not bar the defence and was distinguished for three reasons given therein. In my considered view for the reasons given by the Apex Court for distinguishing the ratio as laid down in the case of Shrimant Shamrao (supra) in a subsequent decision are also the distinguishing features in the case on hand. In my considered view for the reasons given by the Apex Court for distinguishing the ratio as laid down in the case of Shrimant Shamrao (supra) in a subsequent decision are also the distinguishing features in the case on hand. That is (1) it was admitted that the transferee had taken the possession over the property in part performance of the contract and (2) the transferee was always and still is ready and willing to perform his part of contract which is not so here. This point has been dealt in later part of the judgment. 30. The reliance placed by the learned counsel for the applicant on the judgment of Mool Chand Bakhru and another v. Rohan and others (supra) is misplaced one. Therein the question was whether plea of part performance under Section 53-A of the T.P. Act on the basis of an oral agreement can be claimed. The answer given is in negative. No such controversy is involved herein. 31. So far as delivery of part of possession is concerned, it may be noted that the present revision was dismissed in default on 24th of March, 2004. The revision was restored on 15th of January, 2005. It was again dismissed in default on 8th of May, 2007. By an earlier order dated 27th of November, 2006, the revision was declared to be abated in view of the order passed on the substitution application No. 62045 of 2005. The revision was restored on 28th of September, 2007. Again, it was dismissed on 4th of December, 2008 but was restored on 10th of July, 2009. The reply of the learned Senior Counsel for the plaintiff-opposite party (Landlord) with regard to the part delivery of possession is that the revision was dismissed in default successively. The plaintiff opposite party (landlord) in process of getting possession got the possession of the part of the accommodation in dispute during this period. The possession of the remaining part could not be obtained as on humanitarian grounds time was given to the tenant to vacate the said portion also. The tenant in the meantime, got the revision restored, hence the possession could not be obtained. In other words, the opposite parties felt cheated by the conduct and so called agreement, at the hands of the applicant. The tenant in the meantime, got the revision restored, hence the possession could not be obtained. In other words, the opposite parties felt cheated by the conduct and so called agreement, at the hands of the applicant. Looking to the conduct of the tenant applicant, the above plea of the respondent landlords finds corroboration from the record and deserves acceptance. It cannot be said that it has got no substance. 32. Taking into consideration the ground realities of life and the fact that the present revision has been pending in this Court for the last more than 18 years and the suit was instituted in the year 1981, it is quite natural that time to vacate the remaining portion was granted by the landlord to the tenant. The tenant after getting the revision restored back turned dishonest and has set up the plea of agreement in question. 33. It is not understandable if the agreement was executed on 21st of March, 2007 why the same was not placed before the Court immediately thereafter and the tenant has waited for more than two years to place the same on record. There is no material on record to show that the said agreement was ever acted upon. 34. The one of the hurdles in the way of the applicant is that, even if the agreement is accepted, he has never been ready and willing to perform his part of the contract. In A. Lewis and another v. M.T. Ramamurthy and others, AIR 2008 SC 493 it has been held that protection under Section 53-A of the Transfer of Property Act would not be available if the transferee just keeps quiet and remained in possession without taking effective steps. Further, he must also perform his part of the contract and convey his willingness. It is not so here. 35. Under the agreement the parties were required to file applications for withdrawal of cases pending at Meerut and at Allahabad High Court within a period of one month, but no such application was ever filed. 36. It appears that the tenant applicant is in habit of setting up the agreement to sell. It is not so here. 35. Under the agreement the parties were required to file applications for withdrawal of cases pending at Meerut and at Allahabad High Court within a period of one month, but no such application was ever filed. 36. It appears that the tenant applicant is in habit of setting up the agreement to sell. Similar kind of agreement was set up even before the trial Court with the allegation that the plaintiffs Suresh Chand, Smt. Kiranwati, Rakesh Chand entered into agreement dated 8th of August, 1978 by virtue of which they agreed to sell the disputed premises to the defendant and the defendant is going to file a suit for specific performance of contract to sell as pleaded in the written statement. There is nothing on record to show that any such suit for specific performance of contract to sell was ever filed. 37. It may be noted that in the alleged agreement period of one month is fixed for the execution of the sale deed. The said period has admittedly expired on 20th of April, 2007. The case of tenant applicant is that before expiry of time for execution of the sale deed, the time has been repeatedly extended for the execution of the sale deed vide Annexure-3 to the affidavit. Taking the said averment on its face value for the sake of the agreement, though it does not inspire any confidence, the time was lastly extended on 20th of August, 2007 to 20th of September, 2007. Even that period has expired but till date, the tenant applicant has not taken any steps for getting the sale deed executed in pursuance of the alleged agreement. 38. Allegedly a sum of Rs. 50,000/- has been paid in cash as mentioned in the agreement. The payment of said consideration in cash also does not inspire confidence inasmuch as when the parties were litigating since the year 1981. In view of the long drawn litigation between the parties the theory of payment of Rs. 50,000/- in cash is very doubtful. 39. The fraudulent and bogus nature of the document is further established from the facts that the signatures of Smt. Charanjeet Kaur as appears on the alleged agreement and on her affidavit (Annexure-2) are apparently different. The difference can be easily detected from naked eyes. 50,000/- in cash is very doubtful. 39. The fraudulent and bogus nature of the document is further established from the facts that the signatures of Smt. Charanjeet Kaur as appears on the alleged agreement and on her affidavit (Annexure-2) are apparently different. The difference can be easily detected from naked eyes. Apart from the above, Annexure-2, the affidavit, purported to have been given by Amarjeet Singh son of Raghubir Singh, Smt. Charanjeet Kaur, Aman Singh, Gagan, but the said affidavit is purported to be signed only by Smt. Charanjeet Kaur. Out of four persons, it has been signed only by one person. The affidavit of the applicant is in the nature of self serving statement and does not inspire any confidence. Even in this affidavit it has been stated that the revision and the stay application have been dismissed twice by the High Court ex parte and the restoration application is pending which supports the contention of the learned senior counsel for the plaintiff landlord that the tenant has taken undue advantage of the time granted to him to vacate part of the accommodation in question by manufacturing purported agreement to sell. 40. In nutshell the alleged agreement dated 21st of March, 2007 is a forged and fabricated document and cannot be relied upon. An agreement to sell compulsorily requires registration which is not so here. Moreover, the original copy of the agreement to sell dated 21st of March, 2007 has not been filed. The defendant applicant continues to be in occupation of the disputed accommodation as a tenant whose tenancy has been determined by the decree for eviction. Satisfaction of the said decree by adjustment having not been done as per the provision of Order 21 Rule 2, C.P.C., the agreement in question cannot be pressed into service by the tenant applicant. The applicant for the reasons given above, is not entitled to protect his possession under Section 53-A of the T.P. Act, as his possession is not in part performance of any agreement to transfer nor he has showed his willingness to perform his part of the contract. 41. The applicant for the reasons given above, is not entitled to protect his possession under Section 53-A of the T.P. Act, as his possession is not in part performance of any agreement to transfer nor he has showed his willingness to perform his part of the contract. 41. Apart from the above, even otherwise also the said agreement cannot be relied upon in these proceedings even if the agreement can be read in evidence, as present proceedings are revisional proceedings wherein only the legality, validity and propriety of the order under the revision has to be examined on the basis of the record which was available to the trial Court and not otherwise. 42. The point No. 1 is, therefore, disposed of accordingly against the present applicant. 43. So far as the second point is concerned, the trial Court has come to the conclusion that rate of rent was Rs. 400/- per month. It has believed the rent note purported to have signed by the defendant tenant. Although the defendant tenant has denied his signatures on the rent note but the trial Court has taken pains and has given cogent and valid reasons to come to the conclusion that the said rent note was signed by the defendant tenant. Both the parties filed evidence of expert in support of their respective cases. The expert evidence usually in such kind of matters supports the stand taken by the party who called them to give the evidence. The trial Court has not done any wrong by comparing the admitted signatures of the defendant tenant with his purported signature on the rent note. The Court has compared the signatures and reached to the conclusion that broad characteristic of the signatures of the defendant are that the formation of letters ‘S.S’ is such that the top is in the form of a loop as is clear from the disputed signatures on the rent note and the signatures on the Vakalatnama paper 9C and written statement paper No. 22c/4. Similarity has been found in the letter ‘K’ in the disputed as well as in the admitted signatures. Similarity has been found in the habit of writing letters ‘a and p’ in the same flow. Similarity has been found in the letter ‘K’ in the disputed as well as in the admitted signatures. Similarity has been found in the habit of writing letters ‘a and p’ in the same flow. It has considered the various similarities in between the two signatures of defendant tenant—one admitted and one disputed and the Court below reached to a definite conclusion that there remains no doubt that the rent note also bears the signatures of the defendant tenant. The trial Court in no uncertain terms has found that the rent note Ext. 6 was executed by the defendant on 1st of April, 1974. It may be placed on record that no attempt was made by the learned counsel for the defendant tenant to point out any infirmity or illegality in the above line of reasonings of the learned trial Court. Only this much has been urged that the learned Judge instead of rejecting the two contradictory reports of the handwriting expert should have accepted the one. The said argument has been raised for the sake of argument. A reading of the judgment as a whole under issue No. 3 which runs from paragraphs 7 to 10 it would show that the learned Judge was totally alive to the two contradictory reports of the expert and he compared the signatures to find out the truth. Even otherwise also, the said finding recorded by the Court below is based on appreciation of evidence and in absence of any perversity or misreading of evidence, the finding recorded by the learned Judge cannot be brushed aside lightly by this Court while exercising the revisional jurisdiction under Section 25 of the Provincial Small Cause Courts Act. 44. For the same reason, the finding recorded on the question of default calls for no interference. 45. In view of the above discussion, there is no merit in the revision. The revision is dismissed with cost. The cost is assessed as Rs. 10,000/- as the defendant applicant has left no stone unturned to linger on the hearing of the present revision which remained pending in this Court on account of successive dismissals of the revision in default for over a period of 10 years. The learned counsel for the applicant argued out the revision only when he was compelled by the order dated 10th of July, 2009 passed on the last restoration application No. 154997 of 2009. The learned counsel for the applicant argued out the revision only when he was compelled by the order dated 10th of July, 2009 passed on the last restoration application No. 154997 of 2009. The relevant extract of the said order is reproduced below : “........Sri A.K. Pandey, learned counsel for the respondents has submitted that this revision has been dismissed for non-prosecution on earlier occasions and each time it is restored, which is a clear indication that the revisionist is delaying the disposal of this revision, which is pending since 1991 and the respondents are facing great harassment and hardship. The undertaking given by Sri Pramod Jain, learned counsel for the applicant-revisionist is that he will not seek any adjournment in this revision and cooperate in its disposal on the next date of listing. As jointly prayed by learned counsel for the parties, let this revision be listed before the appropriate Bench in the weekly hearing cause list in the week commencing 20.7.2009. The interim order dated 25.1.1991 shall also stand revived, subject to any third part interest that might have been created only till 24.7.2009, unless extended by the Court.” 46. The applicant does not deserve any sympathy. It appears that since he is enjoying the disputed accommodation which is situate in heart of city Meerut on a paltry sum of Rs. 400/- per month and took the shop in the year 1969, the interest of justice demands imposition of exemplary cost of Rs. 10,000/- (Rupees Ten Thousand). The revision is dismissed with cost of Rs. 10,000/- (Rupees Ten Thousand). 47. Time to vacate the disputed premises is granted up to 31st of December, 2009 subject to the payment of damages at the rate of Rs. 3,000/- (Rupees Three Thousand) per month with effect from 1st of September, 2009 and filing of an undertaking on affidavit by the applicant before the Court concerned that he will vacate the disputed premises and will hand over its peaceful vacant possession of the same to the plaintiff landlords on or before 31st of December, 2009. In case the applicant fails to vacate it up to 31st December, 2009, the plaintiff landlords will be at liberty to put the decree for execution and then the applicant will be liable to pay damages at the rate of Rs. In case the applicant fails to vacate it up to 31st December, 2009, the plaintiff landlords will be at liberty to put the decree for execution and then the applicant will be liable to pay damages at the rate of Rs. 3,000/- (Rupees Three Thousand) per month till the actual delivery of possession w.e.f. February, 1991 (as the date of stay order in revision is 25.1.1991). 47. The office is directed to send down the record of the case to the Court below, forthwith. ————