Research › Search › Judgment

Chhattisgarh High Court · body

2011 DIGILAW 71 (CHH)

Chandrahas Patel v. Masih Dan

2011-02-23

N.K.AGARWAL

body2011
JUDGMENT N.K. Agarwal, J. 1. Heard on admission. 2. By this common judgment, S.A. Nos. 62, 63, 64, 65, 66 and 67 of 2011 are being disposed of as the common facts and issues are involved in all these Second Appeals. 3. These appeals have been filed by the Defendants against the judgment and decree dated 22.10.2010 passed by the VIIIth Additional District Judge (FTC), Durg in Civil Appeal Nos. 11-A/10, 1-A/10, 2-A/10,3-A/10, 10-A/10 & 7-A/10 affirming the judgment and decree passed by the IVth Civil Judge, Class II, Durg in Civil Suit Nos. 38-A/09, 37-A/09, 39-A/09, 41-A/09, 40-A/09 and 36-A/09 respectively. 4. Brief facts of the case are that: admittedly, the Appellants are residing in the part of suit premises as tenants of Respondent/Plaintiff; the suit premises were given on rent by the Plaintiff to the Appellants on monthly rent of Rs. 250, 150, 250, 250, 150 and 250/- respectively; the Appellants entered into agreement of sale with the Respondent/Masih Dan in the year 2002; did not fulfill the conditions of agreement of sale, inasmuch as, neither balance consideration amount was paid nor shown their readiness and willingness to perform their part of contract and have also stopped paying rent to the Respondent. 5. The Respondent filed suits under the provisions of C.G. Accommodation Control Act, 1961 (for short 'the Act, 1961') for eviction of Appellants from the suit premises on the ground of bonfire need for residence of himself and his family members and on the grounds: tenants have neither paid rent nor tendered the whole of the arrears of the rent legally recoverable from them within two months of the date on which a notice of demand for the arrears of rent has been served on them by the landlord in the prescribed manner. The suit was contested by the Appellants mainly on the ground after entering into agreement of sale they became the owner of the suit premises and relationship of landlord and tenant does not exist and the suit filed by the Respondent for eviction is not maintainable. 6. The trial court, on appreciation of evidence led material placed and submissions made, rejected the defense taken by the Appellants, holding Plaintiff/ Respondent is in bonfire need of suit premises and also the Appellants have committed default in payment of rent despite demand notice, decreed the suit in Respondent's favor. 7. 6. The trial court, on appreciation of evidence led material placed and submissions made, rejected the defense taken by the Appellants, holding Plaintiff/ Respondent is in bonfire need of suit premises and also the Appellants have committed default in payment of rent despite demand notice, decreed the suit in Respondent's favor. 7. There-against, first appeals preferred by the Appellants were also dismissed by the first appellate court. Hence these Second Appeals. 8. Learned Counsel appearing for the Appellants would submit that after entering into agreement of sale, the Appellants became the owner of the suit premises and the eviction suit preferred by the Respondent is not maintainable, and therefore, both the courts below have erred in passing the decree in Respondent's favor. 9. I have heard the counsel appearing for the Appellants and perused the order impugned. 10. Copies of agreement of sale in all the cases are produced by the counsel appearing for the Appellants during the course of arguments which is taken on records. There is nothing in the agreement of sale suggesting their continuance in possession in part performance of the contract and that they have done some act in furtherance of the contract. 11. Section 53A of the Transfer of Property Act, 1882 (for short 'the Transfer of Property Act') reads as under: 53A. There is nothing in the agreement of sale suggesting their continuance in possession in part performance of the contract and that they have done some act in furtherance of the contract. 11. Section 53A of the Transfer of Property Act, 1882 (for short 'the Transfer of Property Act') reads as under: 53A. 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 the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefore by the law for the time being in force, the transferor or any person claiming under him 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. 12. Before invoking Section 53A of the Act, parties invoking above provision has to establish (i) a contract to transfer immovable property; (ii) the transfer should be for consideration; (iii) the contract must be in writing; (iv) it should be signed by or on behalf of the transferor; (v) the terms of the contract can be ascertained with reasonable certainty from the writing; (vi) the transferee takes possession of the whole or part of the property or if already in possession continues in possession in part performance of the contract; (vii) the transferee should do some act in furtherance of the contract; and (viii) the transferee has performed, or is ready and willing to perform his part of the contract. 13. 13. The Supreme Court in case of FGP Limited v. Saheh Hooseini Doctor and Anr. 2009(10) SCC 223., has held in para 25 & 26 of its judgment: - the rational of equitable doctrine of part-performance in English law and as applicable in India via Section 53A is that the act or action relied upon as "evidencing part-performance" must be of such nature and character that its existence would establish the contract and its implementation. The crucial act or action must be of such a character as to be unequivocally referable to the contract as having been performed in performance of the contract. The act relied upon by the party invoking the said doctrine must be such as by its own force to show the very existence of the same contract. 14. The Appellants have failed to exercise their rights of specific performance of contract by filing the suit. They did not pay the balance consideration amount after entering into agreement of sale and also stopped paying rent; the Appellant' defense was struck-out by the trial court under Section 13(6) of the Act; there is nothing in the agreement of sale written on plain sheet of papers showing intention to extinguish relationship of landlord and tenant after its execution; the Appellants have failed to show in part performance of the contract; they have done some act in furtherance of the contract and are always been ready and willing to perform their part of contract, in the absence of above, the Appellants are not entitled to take shelter of equitable doctrine of part performance of the contract. 15. Undisputedly, the Respondent/Plaintiff is an old person; is in need of suit premises; merely because at some point of time he was willing to sell the building; he cannot be preempted from claiming the relief of eviction on the ground of bonfire need. 16. In view of above, the Appellants have failed to show any illegality or perversity in the concurrent findings recorded by both the courts below. Therefore, I am of the considered opinion that no substantial question of law arises for determination in these appeals. 17. This Court cannot proceed to hear a second appeal without there being any substantial question of law involved in the appeal. Existence of substantial question of law is the sine-qua-non for the exercise of the jurisdiction under the amended Section 100 of the Code. 17. This Court cannot proceed to hear a second appeal without there being any substantial question of law involved in the appeal. Existence of substantial question of law is the sine-qua-non for the exercise of the jurisdiction under the amended Section 100 of the Code. Learned Counsel appearing for the Appellants failed to point out any substantial question of law, which may arise for determination in the case. In the absence of any substantial question of law arises for determination of this Court, this Court has no option but to dismiss the appeals. 18. In view of above, since no substantial question arises for determination of the case, the appeals are dismissed. No order as to costs.