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2013 DIGILAW 1725 (PNJ)

Meenakshi v. Abnash Chander Mahajan

2013-12-19

JASPAL SINGH

body2013
Jaspal Singh, J. 1. Appellants have filed the instant appeal being dissatisfied with the judgment and decree dated June 4, 2004 passed by lower Appellate Court, Chandigarh whereby the suit for possession by way of ejectment and recovery of mesne profits was decreed. The facts relevant for deciding the present appeal are that a civil suit titled as Sh. Abnash Chancier Mahajan and others v. Sh. Ravi Kumar Kalia and others, bearing Civil Suit No. 289/January 11, 1989 was preferred by Shri Abnash Chander Mahajan and others plaintiffs (respondents herein) for ejectment of the defendants (appellants herein) from ground floor and IInd floor of SCO No. 360, Sector 32-D, Chandigarh as well as suit for recovery of damages/ mesne profits submitting therein that the defendants (appellants herein) are tenants on the ground floor and IInd floor of SCO No. 360, Sector 32-D, Chandigarh on a monthly rent of Rs. 5930/-. It was further submitted that since the defendants could not prove to be the good tenant, the plaintiffs had terminated the tenancy by issuing the notices dated October 5, 1988 and October 6, 1988 calling upon the defendants to vacate the said premises and deliver its vacant possession to the plaintiffs. The plaintiffs also claimed damages and mesne profits. Since the defendants did not vacate the premises and did not bother about the aforesaid notices, the plaintiffs were left with no option except to file the suit for ejectment and recovery. 2. Upon notice; the defendants-appellants filed their written statement submitting therein that plaintiffs-respondents agreed to sell the whole of this property to them for a consideration of Rs. 11,00,000/-. In this regard, an agreement to sell was executed on July 6, 1989. The defendants-appellants paid a sum of Rs. 1,00,000/- to the plaintiffs-respondents as earnest money vide bank draft No. 663772 dated July 5, 1989. Before executing the sale deed in terms of the above agreement, the plaintiffs-respondents were required to obtain no objection certificate from the Estate Office, Chandigarh and income tax clearance certificate from the Income Tax Authority. The sale deed was to be executed in favour of the defendants-appellants within fifteen days from the date of completion of the above formalities. The respondents-plaintiffs failed to deposit the instalments pertaining to this building with the Estate Office. As such, Estate office issued a notice to the respondents-plaintiffs for resuming this building for non-payment of that amount. The sale deed was to be executed in favour of the defendants-appellants within fifteen days from the date of completion of the above formalities. The respondents-plaintiffs failed to deposit the instalments pertaining to this building with the Estate Office. As such, Estate office issued a notice to the respondents-plaintiffs for resuming this building for non-payment of that amount. However, in pursuance to the agreement, the defendants-appellants deposited a sum of Rs. 1,24,641/- on 26.10.1989, Rs. 1,00,000/- on 9.1.1990, Rs. 25,000/- on 17.5.1994 and Rs. 20,000/- on 4.10.1994 in the Estate Office. It was alleged that this amount was carrying interest @ 24% per annum which was to be adjusted towards rent. It was further alleged that though the defendants-appellants were ready and willing to perform their part of the contract in terms of the agreement but the respondents-plaintiffs neither obtained no objection certificate from the Estate Office nor did they obtain income tax clearance certificate from the Income Tax Authority. They kept on delaying the matter on one pretext or the other. Therefore, respondents-plaintiffs have no locus standi to seek their ejectment from the demised premises. 3. While appreciating the evidence available on record, the said suit was dismissed with costs vide judgment and decree dated June 15, 1999 by the trial Court. 4. Feeling disheartened against the said judgment, the plaintiffs preferred an appeal before the learned Additional District Judge, Chandigarh, which was accepted and the impugned judgment and decree dated June 15, 1999 passed by the lower Court were set aside and the suit of the plaintiffs seeking ejectment of the defendants from the shop in question succeeded. Besides it, suit for recovery was also decreed with costs throughout and the plaintiffs were further held entitled to receive interest @ 6% per annum from the date of filing of the suit till its realization. 5. Feeling aggrieved against the judgment and decree dated June 1, 2004 passed by the lower Appellate Court, the appellants preferred the instant appeal. 6. While assailing the impugned judgment passed by the lower Appellate Court, it has been ebulliently argued by the learned counsel for the appellant that the same are absolutely against the evidence available on file and the proposition of law applicable to the facts and circumstances of the case in hand. 6. While assailing the impugned judgment passed by the lower Appellate Court, it has been ebulliently argued by the learned counsel for the appellant that the same are absolutely against the evidence available on file and the proposition of law applicable to the facts and circumstances of the case in hand. Mis-appreciation of the legal proposition as well as the contents of the agreement to sell has resulted into miscarriage of justice. It has been contended by the learned counsel for the appellant that learned trial Court delivered its findings and decided issues No. 1, 2 and 5 while relying upon Section 53-A of Transfer of Property Act (for short "the Act") and on the plea of waiver. Whereas the learned lower Appellate Court reversed the findings and decreed the suit for ejectment on a presumption that Section 53-A of the Act as well as the doctrine of merger are not applicable and held that the specific performance of the agreement to sell dated July 6, 1989 is binding only to the extent of 1/3rd share but these findings/observations made by the learned lower Appellate Court are not sustainable being against the evidence and the settled principles of law. In fact, after the execution of an agreement to sell dated July 6, 1989 and delivery of possession in part performance thereof as is evident from Clause 3 and 9 of the Agreement, the relationship of landlord and tenant ceased to exist. A perusal of clause-3, makes it abundantly clear that the purchaser is already in possession of the ground floor and IInd floor and the first floor and 1/2 portion of the basement is under tenancy rights. The said seller shall deliver the possession at the time of registration of the sale deed which clearly connotes that the appellant will not continue as tenant and the possession other than the tenanted premises rights will be handed over to him at the time of registration of the sale deed. Similarly, clause-9 provides that the seller shall be entitled to receive the rent from the tenants i.e. the tenants on the first floor and 1/2 portion of the basement. This clause does not in any way relate to the purchaser. So, when the possession stands delivered in part performance of the agreement to sell, the relationship of landlord/tenant came to an end automatically. This clause does not in any way relate to the purchaser. So, when the possession stands delivered in part performance of the agreement to sell, the relationship of landlord/tenant came to an end automatically. The issuance of notice under Section 106 of the Act terminating the tenancy looses its value and respondents would be deemed to have waived their right under Section 113 of the Act accrued after the termination of notice by way of execution of agreement to sell. 7. It was next argued by the learned counsel for appellants that after execution of the agreement to sell, appellants came in possession of the property in part performance thereof on payment of earnest money to the tune of Rs. 1 lac out of the total sale consideration of Rs. 11 lacs. So, after that, the appellants were not under an obligation to pay the rent. The learned lower Appellate Court has committed a grave error while decreeing the suit for possession and recovery of Rs. 2,37,899/- on account of arrears of mesne -profits. Moreover, learned lower Court has also wrongly interpreted the applicability of the principles of merger. In fact, when the possession has already been obtained of the part of the property which was already in occupation of the appellants as a tenant in part performance of the agreement, the relation of the landlord came to vest in the tenant and the tenancy stood extinguished. To buttress this contention, learned counsel for the appellants has also placed reliance upon the judgment of the Hon'ble Apex Court captioned as R. Kantihimathi and another v. Beatrice Xavier (Mrs.), (2000)9 S.C.C. 339 . 8. While concluding his arguments, it has been submitted by the learned counsel for the appellants that considering the impugned judgment and decree of the lower Appellate Court from any of the angles, the same are not sustainable. As such, the same are liable to be set aside and the judgment of the lower Court deserves to be upheld/affirmed. 9. These arguments have been controverted by the learned counsel for the respondents contending that the impugned judgment is well reasoned and elaborative. It is fully proved on record that the notice Ex. P-1 under Section 106 of the Act was served upon the present appellants/defendants prior to the institution of suit for ejectment, at that time, provisions of Rent Act were not applicable. It is fully proved on record that the notice Ex. P-1 under Section 106 of the Act was served upon the present appellants/defendants prior to the institution of suit for ejectment, at that time, provisions of Rent Act were not applicable. The suit for ejectment was filed within a period of 5 years i.e. on January 9, 1989 from the date of release of sewerage connection i.e. January 25, 1984 to the building in question when the present appellants/defendants were in occupation of the part of the building as tenants on payment of Rs. 5930/- per month. As per clause-9 of the agreement Ex. D.W. -3/9, the seller was entitled to receive rent from the tenants till the date of the registration of transfer deed meaning thereby that the tenancy was to continue till the registration of the transfer deed. Moreover, the rent has also not been paid by the present appellants/defendants which was settled between the parties at the time of creation of tenancy. The impugned judgment and decree for possession by way of ejectment and mesne profits passed by the lower appellate Court is legal and valid and appellants/defendants have rightly been ordered to be ejected from the premises in dispute. Appeal being without merit deserves to be dismissed with special costs. 10. This Court has given an anxious thought to the rival submissions and have perused the impugned judgment and the record. 11. Undisputedly, the ground floor and the IInd floor of SCO No. 360 Sector 32-D, Chandigarh, was taken on rent by the present appellants at the rate of Rs. 5930/- per month excluding water rent, electricity charges from Abnash Chander and others i.e. respondents/plaintiffs and the tenancy was terminated by way of issuance of notices dated October 5, 1988 and October 6, 1988 calling upon the present appellants to vacate and deliver vacant possession. When the possession was not delivered, the suit was filed for ejectment seeking decree for possession which was resisted by the appellants on the basis of agreement to sell dated July 6, 1989 executed between Subhash Kalia one of the appellants and Abnash Chander allegedly on his behalf as well as on behalf of his wife and his son but a judicial notice can be taken so far as agreement to sell is concerned. The connected matter with regard to the specific performance of the aforesaid agreement has been disposed of by this Court today vide separate judgment according to which, the decree of the lower Appellate Court granting specific performance to the extent of 1/3rd qua the share of the premises in dispute of Abnash Chander was upheld. Moreover, there is no specific recital in the agreement to sell that the possession of the property in dispute has been delivered to the present appellants in part performance of the agreement. It also cannot be inferred that the relationship of landlord/tenant came to an end on the execution of the agreement to sell especially in view of the fact that the possession was to be delivered on the date of execution and registration of the sale deed as per the terms and conditions of the agreement to sell. It is also otherwise not possible to deliver the possession of 1/3rd share when the executant and his wife and son were not in possession of their specific shares. Had the agreement to sell been in possession of the entire property and the possession thereof would have been with the proposed vendees i.e. the appellants, the authority relied upon by the appellants R. Kantihimathi and another v. Beatrice Xavier (Mrs.) (supra) would have been applicable. Whereas in the case in hand even the doctrine of merger is not applicable. It has been rightly so held by the learned lower Appellate Court. The pronouncement of the Hon'ble Supreme Court captioned as M/s. India Umbrella Manufacturing Company and others v. Bhagabandel Aggarwals by L.Rs. Savitri Aggarwala (Smt.) and others, A.I.R. 2004 S.C. 132 squarely covers the controversy involved in this case, in which, the following observation was made: "The fact remains that they have purchased only a share in the property and not the entire property. The applicability of the doctrine of merger within the meaning of clause (d) of Section 111 of the Transfer of Property Act, 1882 is not attracted. In order to bring the tenancy to an end the merger should be complete i.e. the interest of the landlord in its entirety must come to vest and merge into the interest of tenant in its entirety. In order to bring the tenancy to an end the merger should be complete i.e. the interest of the landlord in its entirety must come to vest and merge into the interest of tenant in its entirety. When part of interest of the landlord or the interest of one out of many co-landlords-cum-co-owners comes to vest in the tenant, there is no merger and the tenancy is not extinguished." 12. So, neither the principles of merger is attracted nor the possession of the appellants/defendants could be protected under Section 53-A of the Act. Therefore, the tenancy stood terminated by service of notice Ex. P-1 under Section 106 of the Act. 13. As regards the mesne profits, a sum of Rs. 2,37,899/- has been claimed by the plaintiffs/respondents though after deducting a sum of Rs. 2,24,641/- but the decree was passed in respect of sum of Rs. 2,37,899/- and the same has not been challenged by the respondents/plaintiffs either by way of appeal or by filing cross objections claiming the amount which has already been received by them as per the plaint. 14. So taking the case of the present appellants from any of the angles, no interference by this Court is justified in the findings recorded by the Appellate Court as well as the impugned judgment and decree. Accordingly, the appeal is dismissed whereby the impugned judgment and decree passed by the lower Appellate Court dated June 4, 2004 are upheld/affirmed. No order as to costs.