Andhra HC (Pre-Telangana)
V. Narasimha Chary vs P. Radha Bai And Ors. on 31 August, 1999
Equivalent citations: 1999(5)ALT499
ORDER C.Y. Somayajulu, J.
1. This revision arises out of the order dated 19-7-1999 in E.P. No. 86/1998 in O.S.No. 1071 /1985 on the file of the Court of the IV Senior Civil Judge, City Civil Court, Hyderabad, issuing a warrant for delivery of possession of the first floor of the house bearing Municipal No. 21-2-146 situate at Gulzar House, Hyderabad.
2. The brief facts of the case are that the first respondent is the widow and respondent Nos. 2 to 7 are the children of P. Kishan Lal. 8th respondent was the owner of the building consisting of the ground floor and first floor i.e., ground floor bearing Municipal No. 21-2-156 and the first floor bearing Municipal No. 21-2-146 at Gulzar House, Hyderabad. Revision Petitioner was the tenant of 8th respondent in respect of the first floor of the building bearing No. 21-2-146. P. Kishan Lal took the ground floor portion bearing Municipal No. 21-2-156 on lease from the 8th respondent, and later entered into an oral agreement to purchase the entire building i.e., ground floor and the first floor bearing Municipal Nos. 21-2-156 and 21-2-146 at Gulzar House with the 8th respondent. Subsequently, 8th respondent sold the first floor bearing municipal No. 21-2-146 to the revision petitioner under a registered sale deed dated 19-7-1985. After coming to know that the first (sic. eighth) respondent sold the portion bearing municipal No. 21-2-146 to the revision petitioner, he (first respondent) filed O.S. No. 1071/1985 against the revision petitioner, 8th and 9th respondents seeking a decree of Specific Performance of the oral agreement of sale of the entire building in his favour. During the pendency of the suit P. Kishan Lal died and so respondent Nos. 1 to 7 were brought on record as his legal representatives, which was decreed by the trial Court. The appeals against the said judgment and decree in C.C.C. Appeal Nos. 112, 124 and 141 of 1995, filed in this Court were dismissed by a Division Bench of this Court. Special leave to file appeal in the Supreme Court against the decree of the Division Bench was dismissed by the Supreme Court. So, the decree for specific performance passed against the Revision Petitioner and respondent Nos. 8 and 9 has become final. In pursuance of the said decree, respondent Nos. 1 to 7 (Decreeholders) filed E.P.No. 86/1998 for execution of the sale deed and for delivery of possession of the property agreed to be sold. Since the appellant (sic. petitioner) and respondent Nos. 8 and 9 (Judgment-debtors) have not executed the sale deed, the Court executed the sale deed in respect of the entire building and got it registered. Thereafter respondent Nos. l to 7 (decreeholders) moved the executing Court for possession of the property. The Revision Petitioner opposed the prayer for possession of the first floor bearing No. 21-2-146 on the ground that he is a tenant in respect of the said property, and so he cannot be evicted in execution of the decree not only because his occupation is governed by the provisions of the Rent Control Act, but the decree also does not give the relief of possession of the property in his possession to the Decree-holders and since in the plaint also relief of possession of the property in his occupation was not sought. The executing Court overruled the objection and directed issuance of a warrant for delivery of possession of the property in possession of the revision petitioner. Aggrieved thereby, this revision is preferred by the second J.Dr. in the executing Court.
3. The main contention of Sri Suresh Kumar, the learned Counsel for the Revision Petitioner, is that since the decreeholder did not seek for possession of the property in the possession of the Revision Petitioner in the suit and since no relief of possession of the property in possession of the Revision Petitioner is given to the decreeholder in the decree, the executing Court was in error in directing delivery of possession of the property in possession of the Revision Petitioner to the decreeholder. He placed strong reliance on Babu Lal v. Hazari Lal Kishori Lal and Ors., and Mothuraju Punnaiah v. Gori Kapudi Anandam, 1986 ALT 629 in support of his said contention. The contention of the learned Counsel for respondent Nos. 1 to 7 is that till a sale deed is executed and registered, the decreeholder has no right to seek possession of property sold and so not seeking a relief of possession in the plaint is of no consequence and since the judgment-debtors failed to execute a sale deed in terms of the draft sale deed furnished by the decreeholders, the Court executed the sale deed in favour of respondent Nos. 1 to 7 and got it registered in pursuance of the decree and so Respondent Nos. 1 to 7 can make a request to the executing Court and it can grant relief of possession even as per Babu Lal v. Hazarilal Kishori Lal and Ors. (supra) relied on by the learned Counsel for the Revision Petitioner and contended that in view of the fact that the Revision Petitioner admittedly purchased the property in his possession, his right of tenancy got extinguished by merger as a result of the sale in his favour and since the Revision Petitioner became the owner of the property in his possession, he was also directed by the decree to join the sale deed in favour of the decreeholder, to pass on the title that vested in him to the decreeholder, and that after the decree of specific performance his tenancy right would not revive. He placed reliance on Jangili and Ors. v. Bhagwati and Ors., and Harikishan v. Balakishan Panwar, 1980 (1) ALT 209 in support of his said contention.
4. One of the contentions of the learned Counsel for the Revision Petitioner is that the recitals in the plaint disclose that after the oral agreement of sale the parties intended to get a written agreement executed and for that purpose a draft agreement was prepared and that in fact the said draft was also marked as Ex.A-5 during the trial of the suit and Clause (4) thereof reads:
"That the first floor is in possession of the tenant. The vendor shall deliver possession by the attornment of the tenancy of the tenant in occupation."
which clearly means that the parties intended that the revision petitioner should attorn to the purchaser and contended that since the agreement itself does not contemplate physical possession of the property being delivered to the purchaser, and when the decree itself does not grant the relief of possession to the decreeholder, the executing Court was in error in issuing a warrant for delivery of possession of the property in possession of the Revision Petitioner to the decreeholders. He relied on the observations in para 13 of the Judgment of this Court in CCA. Nos. 112, 124 and 141 of 1995 dated 29-7-1998 reading:
"D.W.2 is Narasimha Chary - defendant No. 2. He is a goldsmith by profession. He was aged 55 years as on the date of his deposition dated 6-4-1995. He had been the tenant in the first floor of the suit property since 1972. He has purchased the said portion under original of Ex.B-2 for a consideration of Rs. 40,000/-. Ex.B-2 is the xerox copy of the sale deed obtained by him."
and contended that the tenancy is not set up recently for the purpose of dragging on proceeding, and so the decree holder is not entitled to the physical possession of the property in occupation of the revision petitioner. He placed strong reliance on Section 22 of Specific Relief Act, and contended that since neither in the trial Court nor during the stage of appeal did the plaintiff (decreeholder) claim the relief of physical possession by seeking amendment of the plaint, physical possession of the property in occupation of the Revision Petitioner cannot be granted to Respondent Nos. 1 to 7 (Decreeholders) and contended that the Revision Petitioner is ready to attorn and pay rents to respondent Nos. 1 to 7 (decreeholders).
5. Admittedly, the revision petitioner obtained a registered sale deed in his favour in respect of the property in his possession i.e., Municipal No. 21-2-146, which is marked as Ex.B-2 in the trial Court from the landlady-8th respondent. From the date of sale deed in his favour, the Revision Petitioner who was a tenant in respect of the property bearing No. 21-2-146 ceased to be a tenant of that premises as his status of a tenant got merged with his ownership as per Section 111 of the Transfer of Property Act. It is so because a person cannot be a tenant and landlord of the same premises at one and the same time. In jangli and Ors. v. Bhagawati and Ors. (supra) the Supreme Court held that-
"when a tenant purchases the demised property under preemption decree his tenancy right stands merged into his title as owner and can no longer avail his tenancy rights thereafter."
In a very similar case a Division Bench of this Court in Harikishan v. Balakishan Panwar (supra) held:
"The sale in favour of the appellant not being void, and there being nothing on record to establish that the appellant intended to keep both the interests and lesser estate of tenant and the larger estate of an owner distinct when he purchased the property, we cannot hold that upon a decree for specific performance his status of a tenant which had ceased to exist on 13-10-1971 when he took a registered sale deed in his favour sprang to life on the executing of a registered sale deed in favour of plaintiff-respondent by the Court in execution of the decree for specific performance against the appellant and his predecessor-in-title."
In the case on hand, it is not even the plea, or contention, of the revision petitioner that he wanted to keep the lesser estate of tenant and the larger estate of the owner distinct when he purchased the suit property under the original of Ex.B-2 marked in the suit. Thus by virtue of the registered sale deed dated 19-7-1985 obtained in his favour in respect of building municipal No. 21-2-146, under the original of Ex.B-2 (got marked in the suit) the tenancy right of the revision petitioner got extinguished, and that tenancy does not revive after the Court executed the sale deed for and on behalf of revision petitioner also in favour of respondent Nos. 1 to 7 (decreeholders) on 27-3-1999 and got it registered in pursuance of decree for specific performance obtained by them.
6. The other contention of the learned Counsel for the revision petitioner is that from the facts in Harikishan v. Balakishan Panwar (supra) it is seen that there was a clause in the decree for delivery of possession and since there is no such clause for delivery of possession in this case, that case is distinguishable. I am not able to agree with the said contention. The Supreme Court in Babu Lal v. Hazarilal and Ors. (supra) held that the relief of possession could be given to the decreeholder even though the same is not specifically granted in the decree. In paragraph No. 17 it is held that:
"The word 'proceeding' is not defined in the Act. Shorter Oxford Dictionary defines it as "carrying on of an action at law, a legal action or process; any act done by authority of a Court of law; any step taken in a cause by either party". The term 'proceeding' is a very comprehensive term and generally speaking means a prescribed course of action for enforcing a legal right. It is not a technical expression with a definite meaning attached to it, but one the ambit of whose meaning will be governed by the statute. It indicates a prescribed mode in which judicial business is conducted. The word 'proceeding' in Section 22 includes execution proceedings also."
In view of the above, though the relief of possession is not claimed in the suit, and was not granted in the decree, the executing Court can grant the relief of possession to the decreeholder in execution proceedings also. In view thereof, I am of the opinion that the trial Court has not committed any error and has not acted beyond its jurisdiction in granting the relief of possession in favour of the decreeholder, for this Court to interfere in Revision Under Section 115 C.P.C. In the circumstances of the case, I need not consider the other decision cited at the bar, referred to above.
7. In the result, the revision is dismissed. Revision Petitioner is given six months time to vacate the premises in his possession on condition of his paying Rs. 500/- per month in advance before 7th of every month. Parties are directed to bear their own costs in this revision.