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2009 DIGILAW 355 (MP)

Govind Prasad Dubey v. Chandra Mohan Agnihotri

2009-03-20

K.K.LAHOTI, SUSHMA SHRIVASTAVA

body2009
Judgment K. K. LAHOTI, J. :- This petition is directed against an order dated 28-1-2009 by C the 1st Additional District Judge. - Hoshangabad in Civil Suit No. 34-A/2006. by which an application filed by petitioner under Order 1. Rule 10 read with Section - 151. CPC dated 11-11-2008 was rejected. 2. Learned counsel for petitioner submitted : " (a) That the petitioner was necessary party in the suit filed by respondent No. 1 against respondent No.2. (b) That the petitioner along with respondent No.2 entered into a contract to purchase the disputed premises for a consideration of Rs. 90,000/-. Out of this, Rs. 45,000/- were paid by the petitioner and in part performance of the contract petitioner was in possession of the suit premises. In the aforesaid circumstances, when a suit for eviction was filed by respondent No. 1 against respondent No.2, to protect the interest of petitioner, it was necessary to implead him as defendant. (c) That there was collusion between respondent Nos. 1 and 2 so it became necessary for the petitioner to implead him as party . (d) The petitioner placed reliance to the Apex Court judgment in D. S. Parvathamma v. A. Srinivasan ( AIR 2003 SC 3542 ) : (2003) 4 SCC 705 ) and a judgment of this Court reported in Mukhtiyar Mohammad v. Panna Lal, ( AIR 1985 MP 122 ) and submitted that this petition be allowed, impugned order be quashed and application filed by the petitioner for his impleadment as party under Order I, Rule 10, CPC, be allowed. 3. To appreciate the aforesaid contention, factual position in the case may be stated. The respondent No.1 filed a suit for eviction under Section 12 of the M. P. Accommodation Control Act, 1961 (hereinafter referred to as 'Act' for short) against respondent No.2. In the said suit the petitioner filed an application under Order 1, Rule 10 read with Section 151. CPC, stating that the disputed property was recorded in the revenue papers in the year 1993 in the name of plaintiff Chandra Mohan Agnihotri. An amount of Rs. 90,000/- was paid to the plaintiff out of which Rs. 45,000/ - was paid by the petitioner along with his brother Keshav Duljey, on the same date it was agreed between plaintiff, defendant and petitioner that in the sale deed this fact would be mentioned that out of total consideration, Rs. An amount of Rs. 90,000/- was paid to the plaintiff out of which Rs. 45,000/ - was paid by the petitioner along with his brother Keshav Duljey, on the same date it was agreed between plaintiff, defendant and petitioner that in the sale deed this fact would be mentioned that out of total consideration, Rs. 45,000/- were paid by the petitioner herein. It was further pleaded in the application that at the time of execution of sale deed, the sale of 1st floor was to be affected in favour of petitioner and the possession on the suit property of defendant Keshav Dubey shall be treated on behalf of petitioner. That on the date of filing of application 11-11-2008, petitioner became aware that a suit was filed by the respondent No. 1 against respondent No.2, but without making such averments in the plaint in respect of agreement between the petitioner, respondent No.2 and plaintiff. On the aforesaid grounds it was prayed that the petitioner be impleaded as defendant No.2 in the plaint. 4. Along with the application petitioner filed an affidavit before the trial Court, which is available on page 13, 14 and 15 of the paper book, in which in para 2 of the affidavit the petitioner had stated a fact that the said agreement was oral agreement and no document was available with him. 5. The trial Court after hearing both the parties found :(i) That the petitioner has alleged an oral agreement between the parties. (ii) That the present suit is based on landlord-tenant relationship and the petitioner had not alleged any tenancy with the plaintiff. (iii) That the petitioner had not filed any suit for specific performance of the contract, while the defendant No. 1 filed a suit for specific performance of the contract against the plaintiff as was pleaded by the defendant in para 33 of the written statement. The trial Court found that in case the plaintiff proves the tenancy the suit shall be decided, but by imp leading the petitioner as party, it shall enlarge the scope which is not permissible under the law. (iv) That the petitioner was not necessary party for the decision of the suit. The trial Court found that in case the plaintiff proves the tenancy the suit shall be decided, but by imp leading the petitioner as party, it shall enlarge the scope which is not permissible under the law. (iv) That the petitioner was not necessary party for the decision of the suit. (v) That the petitioner may file an application for his impleadment in the suit filed by the defendant Keshav Dubey against the plaintiff for specific performance of the contract, but in the present suit of eviction he was not necessary party and dismissed the application. This order is under challenge in this petition. 6. In this case it is not in dispute that the present suit was filed for eviction on the ground enumerated under Section 12 of the Act. The scope of suit is limited and the lis is between the landlord and tenant based on tenancy. Though the defendant Keshav Dubey, who is the real brother of petitioner, in written statement took a plea of alleged agreement with the plaintiff but it appears that he had not pleaded in the written statement that such agreement was along with petitioner and plaintiff. There is no written agreement between the parties and on the basis of an oral agreement the present application was filed. It is alleged that the entire consideration of Rs.90.000/- was paid by the petitioner and defendant to the plaintiff. but without any document. The alleged agreement as pleaded in the plaint was of 1993 and the period of near about 15 years has elapsed since then. but what steps were taken by the petitioner for enforcing the agreement nothing is on record to claim part performance as envisaged under Section 53A of Transfer of Property Act. (hereinafter referred to as 'T. P. Act' for short). A written agreement is the essential requirement under Section 53-A of the T.P. Act. For ready reference Section 53-A may be quoted which reads as under : "53-A. Part performance - Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has in part performance of the contract. taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed there for by the law for the time being in force, the transferor or any person clearing under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession other than a right expressly provided by the terms of the contract : Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof." In view of the aforesaid specific provision, to claim a plea under Section 53-A of the T.P. Act a written contract was essential and in absence of any document in writing, the petitioner was not entitled to claim a plea of part performance in the matter. Apart from this. Section 54 of the T.P. Act specifically provides that the contract for sale of immovable property by itself, does not create any interest or charge in the property. In view of specific mandate under Section 54 of the T.P. Act. no interest or charge or such property was created in favour of petitioner. In view of specific mandate under Section 54 when no interest was created in the property, the petitioner was not entitled to be impleaded as party. For ready reference Section 54 may be quoted, which reads as under 54. "Sale" defined - "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made.- Such transfer. in the case of tangible immovable property of the value of one hundred rupees and upward or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property of a value less than one hundred rupees. such transfer may be made either by a registered instrument or by delivery of the property. In the case of tangible immovable property of a value less than one hundred rupees. such transfer may be made either by a registered instrument or by delivery of the property. Delivery of tangible immovable property takes place when the seller places the buyer or such person as he directs, in possession of the property. Contract for sale.- A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property." 7. The Apex Court considering this aspect in Rambahu Namdeo Gajre v. Narayan Bapuji Dhotra (2004) 8 SCC 614 ) : (AIR 2004 SC 4342) held that the doctrine of part performance aims at protecting the possession of such transferee provided certain conditions contemplated by Section 53-A are fulfilled. These conditions are : (a) there must be a contract for transfer for consideration of any immovable property. (b) the contract must be in writing, signed by the transferor or some one on his behalf. (c) the writing must be in such words from which the terms necessary to construe the transfer may be ascertained, (d) the transferee must in part performance of the contract take possession of the property, or of any part thereof, (e) the transferee must have done some act in furtherance of the contract; and (f) the transferee must have performed or be willing to perform his part of the contract. 8. In the present case, it is not the case of petitioner that there was a contract in writing between the petitioner and resp0l1dent No.1, the petitioner was put in possession of the suit property in part performance of the contract, the petitioner has done some act in furtherance of the contract or the petitioner had performed or was wiling to perform his part of the contract. In absence of aforesaid essential ingredients of Section 53-A of the T. P. Act, prima facie no case was established in favour of petitioner. 9. So far as the judgment of Apex Court in D. S. Parvathamma (supra) in that case the agreement of sale of the premises by original landlord was in favour of tenant in possession. In absence of aforesaid essential ingredients of Section 53-A of the T. P. Act, prima facie no case was established in favour of petitioner. 9. So far as the judgment of Apex Court in D. S. Parvathamma (supra) in that case the agreement of sale of the premises by original landlord was in favour of tenant in possession. The tenant failing to disown his character as lessee and also failing to prove that possession was delivered to him in part performance of the agreement, he was not entitled for any benefit. Apart from this suit for specific performance of contract filed by the tenant was dismissed on merits. On the aforesaid grounds the Apex Court held that the tenant was not entitled to claim any benefit in the case. The Apex Court relied on the case of Bhagwandas Parsadilal v. Surajmal ( AIR 1961 MP 237 ) in the matter. 10. In view of aforesaid factual position petitioner is not entitled to take any benefit of D. S. Parvathamma ( AIR 2003 SC 3542 ) (supra). Simplify judgment of this Court in Bhagwandas Parsadilal ( AIR 1961 MP 237 ) is not applicable in the facts of the present case. 11. In view of aforesaid factual discussion, we do not find any merit in this petition. This petition is dismissed at admission stage, with no order as to costs. Petition dismissed.