Allahabad High Court
Kripa Shanker Dwivedi vs Ist Additional District Judge, Kanpur ... on 21 May, 1998
Equivalent citations: 1998(3)AWC2091
JUDGMENT Sudhir Narain, J.
1. This writ petition is directed against the order dated 12.9.1981 passed by respondent No. 1 remanding the case to the Judge Small Causes Court for deciding the suit afresh keeping in view the observations made in the above order.
2. The facts. In brief, are that Dhani Ram, respondent No. 2 filed Suit No. 1603 of 1978 against the petitioner in the Court of Judge Small Causes Court. Kanpur for recovery of arrears of rent, ejectment and damages on the allegation that one Shivanand Pandey was the owner of House No. 107/194, Nehrunagar, Kanpur. The petitioner was his tenant at monthly rent of Rs. 18. He sold the house in question to respondent No. 2 on 18.1.1977 which was registered on 2.3.1977. The petitioner was in arrears of rent from 2.3.1977 to 26.11.1978. He was given a notice to pay arrears of rent but as he failed to pay the rent, inspite of service of notice, the suit was filed.
3. The petitioner filed written statement and denied that there was any relationship of tenant and landlord between him and Shivanand Pandey. He alleged that he was living in Premises No. 107/194A which he had constructed himself for the last about 20 years. Shivanand Pandey was the owner of House No. 107/194. He entered into agreement to sell in respect of that house for Rs. 18,000. He paid Rs. 4.000 in advance and was put into possession of the house in question. He further pleaded that he instituted Suit No. 520 of 1979 which was pending in the Court of find Civil Judge for specific performance of the agreement to sell. The Judge Small Causes Court dismissed the suit on 7.3.1980 on the finding that the plaintiff failed to establish the relationship of landlord and tenant. The plaintiff-respondent filed revision No. 65 of 1960. During the pendency of the revision, he also admitted additional evidence under Order XLI. Rule 27. The petitioner also filed evidence in rebuttal. On consideration of the material on the record, he has remanded the case to the Judge Small Causes Court by his impugned order dated 12.9.1981 to decide the suit afresh keeping in view the observations made in the judgment and the material on the record. This order has been challenged in the present writ petition.
4. I have heard Sri S. D, Pathak, learned counsel for the petitioner, and Sri V. 8. Tewari, learned counsel for respondent No. 2.
5. Learned counsel for the petitioner urged that Shivanand Pandey, the owner of House No. 107/194, had executed an agreement to sell this house for Rs. 18.000 in favour of the petitioner on 14.8.1975 and took advance of Rs. 4,000. In para 3 of the agreement it was specifically mentioned that he has delivered possession of the house and the petitioner having obtained possession in pursuance of the said agreement was entitled to the benefit of Section 53A of Transfer of Property Act, and the relationship of landlord and tenant came to an end and he was in possession of the disputed property in his own right under the agreement. He has placed reliance upon the decision Ghaniram v. Shankarlal and others. AIR I960 MP 3, wherein it was held that if the subsequent transferee has taken the transfer with notice of the contract for the sale of the property, he is liable to the same equities as the party from whom he has taken the transfer. In Bai Dosabai v. Mathuradas Govtnddas and others, AIR 1980 SC 1334. It was held that a contract for the sale of immovable property though does not, of itself, create any interest in or charge on such property, creates an obligation annexed to the ownership of immovable property, not amounting to an interest in the property, but which obligation may be enforced against the transferee with notice of the contract or a gratuitous transferee of the property. These cases have no application in relation to the interest being created by transfer of possession as contemplated under Section 53A of Transfer of Property Act.
6. In Nathoo Lal v. Phool Chand, AIR 1970 SC 546, it was held that where by statute the property is not transferable without permission of an authority, the agreement to transfer the property must be deemed to subject to the implied condition that the transferor will obtain the sanction of the authority concerned. It was further held that the conditions necessary for making out the defence of part performance to an action in ejectment by the owner are :
(1) that the transferor has contracted 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 ;
(2) that 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 ;
(3) that the transferee has done some act in furtherance of the contract : and (4) that the transferee has performed or is willing to perform his part of the contract.
If these conditions are fulfilled, 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 therefor by the law for the time being in force, the transferor or any person claiming under him is debarred from enforcing against the transferee 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.
7. In Sardar Govind Rao Mahadik and another a. Devi Sahai and others, AIR 1982 SC 989, it was held that the person claiming the benefit of Section 53A of Transfer of Property Act must establish all the requisites contemplated under Section 53A of the Transfer of Property Act and after establishing the 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 acts done in pursuance of the contract.
8. In M. Mariappa V. A. K. Sathyanarayana Setty, AIR 1984 Kar 50, where the defendant took the plea that he is entitled to remain in possession in part performance of the contract as contemplated under Section 53A of the Transfer of Property Act. It was held that though the agreement for reconveyance gave option to get the property conveyed within two years, there was no plea in the written statement that the defendant demanded performance of the contract of reconveyance by offering to pay the stipulated price even though two years thereafter were about to be over, the stand by the defendant was incompatible with the plea of part performance.
9. The submission, as made by the learned counsel for the petitioner, does not appear to have been raised before respondent No. 1. It is, however, mixed question of law and facts. The plaintiff had filed certain documents in the Court. The respondent has annexed the affidavit of Shivanand Pandey, the alleged owner of the property, dated 27.1.1977 filed before the Joint Director, Urban Ceiling, wherein he stated that he never agreed to sell the property to any one except Dhani Ram, respondent No. 2. He has also filed an objection of the petitioner dated 20.1.1977 before the Joint Director/Competent Authority. Urban Ceiling, Kanpur, wherein in para 1 of the objection, he stated that he was tenant of House No. 107/194 for the last about 17 years. The petitioner has to establish all the ingredients before he claims the benefit of equitable doctrine of part performance. As the matter has already been remanded, the Court below, on the basis of evidence on the record, will consider this aspect as well.
10. The second submission of the learned counsel for the petitioner is that respondent No. 1, under misapprehension, held that the petitioner had admitted Shivanand Pandey as landlord of the house in question. He has specifically denied this fact in written statement and also in his statement. A perusal of the impugned order of respondent No. 1 shows that respondent No. 1 has noted the pleadings. Respondent No. 1 has, however, referred to the objection of the petitioner filed before the Ceiling Authority dated 20.1.1977, a copy of which has been annexed as Annexure-2 to the writ petition. In this objection, the petitioner had admitted that he was living as tenant of House No. 107/194. Respondent No. 1 has, however, remanded the matter to the Judge Small Causes Court to record a finding on the question whether there is any relationship of landlord and tenant between the petitioner and the plaintiff-respondent. The observation of respondent No. 1 was only in respect of document referred to above. The trial court will consider every aspect of the matter.
11. The third submission of the learned counsel for the petitioner is that the plaintiff-respondent No. 2 had led additional evidence before respondent No. 1. He had filed application under Order XLI, Rule 27 of Code of Civil Procedure. The petitioner had filed objection to the said application. In para 7 of the writ petition. It is stated that the petitioner moved an application to file documents in rebuttal and filed certain documents. He has nowhere asserted that the documents filed by the petitioner have not been accepted in rebuttal. In case, however, the documents filed by the petitioner have nol been accepted in rebuttal, the same can be accepted by the Judge Small Causes Court after remand of the case.
12. The last submission of the learned counsel for the petitioner is that respondent No. 1 acted illegally in settingjaside the finding of the Judge Small Causes Court in revision under Section 25 of the Provincial Small Causes Court Act. As noted above, respondent No. 1, after having found that the Judge Small Causes Court did not take into consideration certain documents, has remanded the matter.
13. I do not find it a fit case for interference under Article 226 of the Constitution of India. The writ petition is accordingly dismissed subject to the observation made above. The parties shall bear their own costs.
14. As the matter is very old, the Judge Small Causes Court shall decide the suit within three months from the date of produclion of a certified copy of this order.