Delhi High Court
Hari Gopal Manu vs B.S. Ojha on 10 February, 2016
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 10th February, 2016
+ RFA No.388/2015
HARI GOPAL MANU ..... Appellant
Through: Mr. Amit Andley and Mr. Arun K.
Sharma, Advs.
Versus
B.S. OJHA ..... Respondent
Through: Mr. Arun Khatri, Adv.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. In this first appeal under Section 96 of the Code of Civil Procedure,
1908 (CPC) against the judgment and decree dated 19th January, 2015 (of the
Court of Additional District Judge (ADJ)-3, South East, Saket Courts, New
Delhi in Civil Suit No.58/2014), on 3rd February, 2016 after hearing the
counsel for the appellant and the counsel for the respondent and perusing the
Trial Court record requisitioned, the following order was passed:
"1. The appeal impugns a judgment and decree on admissions
of ejectment of the appellant from the premises earlier in his
tenancy. Inquiry into mesne profits is underway.
2. Notice of the appeal was issued. The counsels have been
heard.
3. It is not in dispute that the appellant had entered into the
premises as a tenant at a rent in excess of Rs.3,500/- per month
and there is no registered Lease Deed between the parties. The
only defence of the appellant was that the respondent had agreed
to sell the premises to the appellant for a total sale consideration
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of Rs.1.5 crores and out of which the appellant has paid Rs.15
lacs. The appellant relies upon a Memorandum of Understanding
(MoU) in this regard.
4. Needless to state that the respondent / plaintiff controverts.
5. The learned Additional District Judge in these
circumstances has passed a decree for ejectment on admission.
6. The counsel for the appellant has contended that even
though the respondent had denied the Agreement to Sell or
having executed the MoU, the same was required to be
established in evidence and no decree on admissions could have
been passed. It is further contended that as per the said plea of
the appellant/defendant, the nature of possession of the
appellant/defendant on the date of institution of the suit was not
as a tenant but as of a purchaser.
7. I have however enquired from the counsel for the
appellant/defendant, whether not the appellant/defendant having
entered into possession of the premises as a tenant, not obliged
in law to return possession of the premises to the
respondent/landlord and that if at all the nature of possession of
the appellant/defendant was to change from that of a tenant to
that of a purchaser, the same could be done in accordance with
law and not otherwise. This Court in M.R. Sahni Vs. Doris
Randhawa AIR 2008 Delhi 110 held that once a tenant, always a
tenant unless the status changes by contract or by law. Parity
can also be drawn with a licence, in the context whereof Supreme
Court in Sant Lal Jain Vs. Avtar Singh (1985) 2 SCC 332 held
that once a licensee always a licensee and the licence without
surrendering possession as a licensee, cannot set up another title
to property.
8. Such change in accordance with law could have been by the
appellant/defendant coming into possession of the premises in
part performance of the Agreement to Purchase and which could
have happened, after the amendment of the Stamp Act and the
Registration Act w.e.f. September, 2001 only by a registered
document.
9. There is admittedly no registered document recording such
delivery of possession.
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10. The counsel for the appellant/defendant though has not filed
MoU alleged to have been executed, has on request handed over
a copy thereof in the Court but therefrom also is unable to show
that the respondent/landlord as a seller has put the
appellant/defendant into possession of the premises in part
performance of the Agreement to Sell.
11. Thus there does not appear to be any triable issue owing
whereto it can be said that the judgment and decree on admission
is fallacious.
12. The principles of Order 15 of the CPC can also be invoked
in this respect i.e. a meaningful reading of the written statement
not disclosing any triable issue.
13. The counsel for the appellant/defendant seeks time to obtain
instructions from the appellant to find out whether the
appellant/defendant desires to obtain any time for vacating the
premises subject to giving undertaking to the Court.
14. List on 10th February, 2016."
2. The counsel for the appellant today states that the appellant wants
decision of the appeal on merits.
3. Though the reasoning given in the order dated 3 rd February, 2016 is
enough, but this being a first appeal, it is deemed appropriate to further
elaborate.
4. The respondent filed the suit from which this appeal arises pleading (i)
that the appellant/defendant was a tenant under the respondent/plaintiff in Flat
No.96, Mandakani Enclave, Alakhnanda, New Delhi on a monthly rent of
Rs.36,600/- excluding electricity and water charges; (ii) that the last
unregistered lease deed dated 1st June, 2012 executed between the parties was
RFA No.388/2015 Page 3 of 11
for a period of eleven months only and which period had expired on 30 th April,
2013; and, (iii) that the respondent/plaintiff had vide legal notice dated 25th
March, 2013 determined the tenancy of the appellant/defendant and called
upon the appellant/defendant to vacate the premises but the appellant/defendant
had failed to do so.
5. The appellant/defendant filed a written statement pleading (a) that there
was no relationship of landlord and tenant between the parties; (b) that the
respondent/plaintiff had executed a Memorandum of Understanding (MoU) on
7th May, 2013 with the appellant/defendant and whereunder the
appellant/defendant had paid a sum of Rs.15 lakhs in cash and cheque to the
respondent/plaintiff as part consideration for sale of the premises in the tenancy
of the appellant/defendant along with certain other portions of the same
property for a total sale consideration of Rs.1,50,00,000/-; (c) that the
respondent/plaintiff on execution of the MoU had put the appellant/defendant
in possession of the premises as proposed owner.
6. The respondent/plaintiff applied for decree for possession on admissions
under Order XII Rule 6 of the Code of Civil Procedure, 1908 (CPC) and the
learned ADJ allowed the same.
7. I have recently in M/s Jagdambey Builders Pvt. Ltd. Vs. J.S. Vohra
RFA No.388/2015 Page 4 of 11
MANU/DE/0310/2016 held as under:
"10. The first question for adjudication is whether the nature of
possession of the appellant of the premises, would in law change
from that of a tenant to that of a purchaser upon the appellant
agreeing to purchase the premises, so as to deny the respondent /
landlord the right to eject the appellant from the premises as a
tenant.
11. Section 108 of the Transfer of Property Act, 1882 provides
for the rights and liabilities of the lessor and lessee in the
absence of a contract or legal usage to the contrary. Clause
(B)(q) thereof provides that the lessee, on the determination of
the lease, is bound to put the lessor into possession of the
property.
13. From the aforesaid, it becomes evident that it was not the
plea of the appellant that its status in the premises, from that of a
tenant at the time of entering the premises, had changed at any
time or was anything other than as a tenant. The appellant
significantly did not plead that the respondent had put the
appellant into possession of the premises as a purchaser. It was
not its plea that the relationship of landlord and tenant had come
to an end. It was not its plea that its possession of the premises
was anything other than as a tenant.
14. The senior counsel for the appellant during the hearing, also
drew attention to the receipt cum agreement for sale dated 10 th
August, 2006 purportedly executed by the respondent. Though the
same is found to contain the confirmation of the respondent of
receipt of Rs.15 lakhs as advance / earnest money and part
payment towards sale of the property but is not found to contain
any statement that the possession of the appellant of the premises
was as a purchaser or that possession of the premises had been
delivered to the appellant as a purchaser. On the contrary, the
same provides that the respondent shall clear all outstandings,
taxes, charges, house tax and other demands in relation to the
property upto the date of final payment and only thereafter the
same shall be borne by the appellant. The same is indicative of the
possession of the property in pursuance to the agreement to sell
RFA No.388/2015 Page 5 of 11
having not been agreed to be given, else the liability for all
outgoings would have been taken over by the appellant.
15. Upon the same being put to the senior counsel for the
appellant, he draws attention to an undated possession letter but
which is also merely indicative of handing over of possession by
the respondent to the appellant of the first floor of the property
and does not state that the possession was being handed over as a
purchaser.
16. What is thus borne out is that neither is it the plea of the
appellant in the written statement in the suit from which this
appeal arises that the possession of the premises in its occupation
was given to it in pursuance to the agreement to sell nor do the
document containing the agreement to sell or any other document
records the possession of the appellant of the property as a
purchaser. It is thus not understandable on what basis the senior
counsel for the appellant is arguing that the possession of the
appellant on the date of institution of the suit was not that of a
tenant, but as of a purchaser. Arguments of law, in suits and in
appeals arising therefrom, cannot be made de hors the pleadings
and the evidence. This essential difference appears to have been
glossed over. Without laying foundation in pleadings and in
evidence, it is not open to the appellant to urge that its possession
of the property is that of a purchaser.
17. A mere agreement to sell of immovable property does not
create any right in the property save the right to enforce the said
agreement. Thus, even if the respondent/plaintiff is found to have
agreed to sell the property let out to the appellant to the appellant,
the appellant/defendant would not get any right to occupy that
property as an agreement purchaser. This Court in Jiwan Das Vs.
Narain Das AIR 1981 Delhi 291 has held that in fact no rights
enure to the agreement purchaser, not even after the passing of a
decree for specific performance and till conveyance in accordance
with law and in pursuance thereto is executed. Thus in law, the
appellant has no right to remain in occupation of the premises or
retain possession of the premises merely because of the agreement
to sell in his favour.
RFA No.388/2015 Page 6 of 11
18. Section 53A of the Transfer of Property Act, 1882 codifies the
doctrine of part performance. A purchaser of immovable property,
who in pursuance to an agreement to sell in writing has been put
into possession of the property, is entitled to so remain in
possession. However, the writings relied upon by the appellant in
this regard, even if were to be looked into (notwithstanding the
contention of the counsel for the respondent that the same were
not brought before the Trial Court), do not record the possession
of the premises having been delivered to the appellant in
pursuance to or in part performance of the agreement to sell. The
writings do not even state that the appellant shall be entitled to
continue in the premises free of rent as has been pleaded.
19. Even otherwise, the Stamp Act, 1899 and the Registration Act,
1908 as applicable to Delhi were amended w.e.f. 24th September,
2001. After the said amendment, an agreement to sell of
immovable property, where-under the possession of the premises
is delivered in part performance, can only be by a registered
document bearing the prescribed stamp duty i.e. on 90% of the
total agreed sale consideration. Section 49 of the Registration Act
was also amended. A plea of part performance, in the absence of a
registered document, cannot thus be taken. The
appellant/defendant cannot thus in the absence of a registered
agreement to sell, protect his possession in part performance of
the agreement to sell or take such a plea.
20. What follows is that even if the appellant/defendant were to
succeed in his suit for specific performance of agreement to sell,
till the execution of a conveyance deed in pursuance to the decree,
if any in favour of the appellant, the appellant has no ground in
law to save his possession of the premises. The status of the
appellant would continue to be as before i.e. of a tenant whose
tenancy has been determined.
21. I have in Sunil Kapoor Vs. Himmat Singh 167 (2010) DLT
806 (SLP No.6010/2010 preferred whereagainst was dismissed in
limine on 12th March, 2010), M/s. ASV Industry Vs. Surinder
Mohan MANU/DE/2610/2013 and in Sanjiv Pathak Vs. Som
Nath 204 (2013) DLT 667 dealt exhaustively with this aspect.
RFA No.388/2015 Page 7 of 11
22. It was again so dealt by me in Abbot India Ltd. supra.
23. I however elaborate further. Once it is found that the
appellant was not delivered possession of the premises in his
tenancy in part performance of the agreement to sell or that owing
to the agreement to sell being not registered, the plea of being in
possession of the premises in part performance is not open to the
appellant for the reason of there being no registered agreement to
sell, the only inference is of the appellant having continued in
possession of the premises as a tenant.
24. Section 108B(q) of the Transfer of Property Act as aforesaid
imposes an obligation on the tenant to deliver possession to the
landlord. Only if the landlord after inducting a person as a tenant
in the premises thereafter agrees to sell the premises to the tenant
and in part performance of the said agreement to sell delivers
possession of the premises to the tenant, will it be deemed that the
tenant had delivered back possession of the premises to the
landlord for the landlord to thereafter put the tenant into
possession of the premises in part performance of the agreement
to sell. Once, there is no delivery of possession of the premises in
part performance of the agreement to sell, the only inference is
that the person continues in the same status as earlier i.e. as a
tenant.
25. The principle, "once a tenant always a tenant" can also be
invoked in this respect. This Court in M.R. Sawhney Vs. Doris
Randhawa AIR 2008 Delhi 110 (SLP No. 13820/2008
whereagainst was dismissed on 22nd October, 2010) held "ex-
facie, once a tenant always remains tenant, unless the status
changes by contract or by operation of law". As far back as in
Abdul Hakim Mia Vs. Pana Mia Miaji AIR 1919 Calcutta 293
(DB) also it was held that the lessee cannot alter the character of
his possession and that if the plaintiff inducted the tenant into
possession, obviously the character of the possession could not be
altered, without the consent of the plaintiff. Similarly, in M.
Mujibar Rahaman Vs. Isub Surati AIR 1928 Calcutta 546
followed in Sanapathi Sitharamiah Vs. Nandarapu Ramaswamy
AIR 1938 Madras 73 it was held that estoppel under Section 116
of the Evidence Act, 1881 continues, even after the expiration of
RFA No.388/2015 Page 8 of 11
the period of the lease and unless the tenant openly surrenders
possession he is esstopped from contesting the title of the landlord.
The High Court of Punjab & Haryana also in Gurcharan Singh
Vs. Mukhtiar Singh 2010 SCC OnLine P&H 4757 held that a
tenant in possession of the property cannot set up title by adverse
possession in view of Section 116 of the Evidence Act, challenging
the title of the owner/landlord of the property in dispute and that
the principle of "once a tenant always a tenant" would apply. I
may mention that the position of a tenant in this regard is the same
as that of a licensee qua which it was held by the Supreme Court
in Sant Lal Jain Vs. Avtar Singh (1985) 2 SCC 332:
"the respondent was a licensee and it must be
deemed to be always a licensee. It is not open to
him, during the subsistence of the licence or in the
suit for recovery of possession of the property
instituted after the revocation of the licence to set up
title to the property in himself or anyone else. It is
his plain duty to surrender possession of the
property as a licensee and seek his remedy
separately in case he has acquired title to the
property subsequently".
26. Mention may also be made of Raptakos Brett & Co. Ltd. Vs.
Ganesh Property (1998) 7 SCC 184 where it was held that in the
absence of any contract to the contrary, Section 108B(q) of the
Transfer of Property Act remains fully operative by force of Statute
itself. It was reiterated that if the tenant wants to show that he is
not bound to hand over the vacant possession to the landlord as he
has paid the market value of the construction put in by him on
the leased premises, there should be an express term to the contrary
in the contract of tenancy which would override Section 108B(q)
obligation. Naturally, such express term has to be in a contract in
accordance with law and the law with effect from 24 th September,
2001, as far as Delhi is concerned, requires a contract as pleaded
by the appellant to be by a registered document and in the absence
of such a registered document, prohibits a plea as sought to be
taken by the appellant. It has thus but to be held that there is no
RFA No.388/2015 Page 9 of 11
contract to the contrary and thus Section 108B(q) has to be given
effect to.
27. As far as R. Kanthimathi supra on which reliance is placed is
concerned, the said reliance is again de hors the facts of that case.
A reading of the judgment of the Supreme Court shows that in the
agreement of sale in writing in the said case, it was mentioned that
the possession of the property had already been delivered to the
purchaser in pursuance to the agreement of sale. It was in this
context that the Supreme Court held that the jural relationship had
changed from that of landlord and tenant to that of seller and
purchaser of immovable property and the status could not be
reverted to that of landlord-tenant merely because of the seller
repudiating the agreement to sell.
28. However, in the present case, the appellant has utterly failed
to plead that the respondent/landlord at any time in writing
delivered possession of the premises in pursuance to or in part
performance of the agreement to sell. Moreover, as far as the city
of Delhi is concerned, no plea of delivery of possession in part
performance of agreement to sell can be taken, without the
agreement to sell being a registered one."
8. I may mention that the MoU dated 7th May, 2013 relied upon by the
appellant/defendant in this case also, save for recording in recitals thereof that
the appellant/defendant is a tenant in the premises and for recording in para 4
thereof "that the purchaser is already in peaceful possession of the premises"
does not state that the possession of the premises had been given to the
appellant/defendant as purchaser in part performance of the agreement to sell.
Also, the portion of the premises besides that in occupation of the
appellant/defendant as tenant was also let out to other tenants and the liability
RFA No.388/2015 Page 10 of 11
under the said MoU for having the same vacated is also of the seller.
Therefrom also, the question of handing over of the possession of the premises
agreed to be sold in part performance of the agreement to sell does not arise.
9. There is thus no merit in the appeal. Dismissed.
No costs.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J.
FEBRUARY 10, 2016 „bs‟..
RFA No.388/2015 Page 11 of 11