Delhi District Court
Viqar Ahmed vs Mahender Pal Jain (Now Deceased) on 25 September, 2023
Viqar Ahmed Vs. Mahender Pal Jain through LRs
IN THE COURT OF SH. ALOK SHUKLA,
ADDL. DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
TIS HAZARI COURTS, DELHI.
CNR No.:- DLCT01-009105-2018
RCA No.:- 10/2020
RCA DJ No.:-120/2018
IN THE MATTER OF :-
Sh. Viqar Ahmed
S/o late Sh. Abdul Hamid
R/o P. No. 467, Chitla Gate,
Chawri Bazar, Delhi ...Appellant
Versus
Mahender Pal Jain (now deceased)
Through his LRs
1. Sh. Satish Kumar Jain
S/o Late Sh. Mahender Pal Jain,
R/o: House No. 179A, East Azad Nagar,
Gali No. 8, Delhi.
2. Sh. Raj Kumar Jain
S/o Late Sh. Mahender Pal Jain,
R/o: House No. 107/58, East Azad Nagar,
Gali no.8, Delhi.
3. Sh. Sushil Kumar Jain
S/o Late Sh. Mahender Pal Jain,
R/o: House No. 179A, East Azad Nagar,
Gali no.8, Delhi.
4. Smt. Gyiatri Devi
W/o Sh. Rajinder Parshad Jain,
R/o: House No. 5/16-C, Vijay Chowk,
RCA DJ NO. 120/2018 Page 1 of 19
Viqar Ahmed Vs. Mahender Pal Jain through LRs
Krishna Nagar, Delhi.
5. Sh. Amit Jain
6. Sh. Atul Jain
Both S/o Late Sh. Rajinder Kumar Jain,
R/o: House No. 5/16-C, Vijay Chowk,
Krishna Nagar, Delhi.
7. Smt. Amita Jain
D/o Late Sh. Rajinder Kumar Jain.
R/o H. No. 14, Gali No.2
Old Arjun Nagar, Delhi.
8. Smt. Madhu Jain,
W/o Sh. Ashok Jain
R/o C-43, Sector-22
Noida, U.P.
9. Smt. Sushila Jain
W/o Sh. Sushil Jain
R/o C-81, Rishabh Vihar,
Delhi.
10. Smt. Poonam Jain
W/o Shri Sukh Mal Jain
R/o 145, Gali No.12,
East Azad Nagar, Delhi.
11. Smt. Mithlesh Jain
W/o Shri Kamlesh Jain
R/o House situated at Kanya Pathshala
Wali Gali, Distt. Dadri, Ghaziabad, U.P.
12. Smt. Rajbala Jain
W/o Shri Ram Bul Jain
R/o house situated at
Ganj Bazar, Sardana,
RCA DJ NO. 120/2018 Page 2 of 19
Viqar Ahmed Vs. Mahender Pal Jain through LRs
Distt. Meerut, U.P.
13. Smt. Sarla Devi Jain
w/o Late Shri Surender Jain
R/o house situated in
Maliyan Mohalla, Chokhra Bazar,
Sardana, Distt. Meerut, U.P.
(Respondent no. 7 to 13 are daughters
of late Sh. Mahender Pal Jain) .... Respondents APPEAL BY THE APPELLANT AGAINST THE IMPUGNED JUDGMENT AND DECREE DATED 01.06.2018, WHEREBY THE COURT OF SH. SACHIN SANGWAN, LD. CIVIL JUDGE-04 (WEST), TIS HAZARI COURTS, DELHI DECREED THE SUIT HOLDING THE RESPONDENTS ENTITLED TO RECOVER AMOUNT OF RS.45/- X 36 MONTHS PLUS RS. 1100/- I.E. RS.2720/- WITH INTEREST @ 9% PER ANNUM.
Date of institution of the Appeal : 13.07.2018
Date on which Judgment was reserved : 05.09.2023
Date of Judgment : 25.09.2023
::- J U D G M E N T -::
1. The present appeal has been filed against the impugned judgment and decree dated 01.06.2018 passed by Ld. Trial Court, whereby suit of the plaintiff/respondent was decreed and he was entitled to recover amount of Rs.45/- X 36 months + Rs. 1100/- = Rs.2,720/-. Further the plaintiff is entitled to interest @ 9 per cent per annum on the aforesaid arrears of rent till realization of amount. The appellant was defendant and the respondents were RCA DJ NO. 120/2018 Page 3 of 19 Viqar Ahmed Vs. Mahender Pal Jain through LRs plaintiffs before the Ld. Trial Court. Appellants and respondents are respectively referred in this Judgment according to the original status before the Ld. Trial Court. Succinctly, the respondents/ plaintiffs had filed a suit for recovery of Rs.9,629.30/- The suit of the respondents/plaintiffs was decreed vide Judgment and decree dated 01.06.2018. Being aggrieved by the judgment and decree dated 01.06.2018 the appellant/defendant has filed the present appeal.
RESPONDENTS'/PLAINTIFFS' CASE
2. Appellants/plaintiffs had filed the suit on the following averments:
(i) It is the case of plaintiff that he is the owner/landlord qua the defendant who is the tenant on the first floor comprising of one room, tin shed and terrace in house no. 467, Chitla Gate, Chawri Bazar, Delhi @ Rs. 169.40/- (rupees one hundred sixty nine and forty paisa) excluding other charges. The tenancy of the defendant starts from Ist and expires on the last day of each english calender month.
(ii).As per plaintiff, he has filed two suits for recovery of arrears of rent on 29.05.1998 and 02.09.2002 against the defendant and both the suits are pending in the court of Sh. Parveen Singh, Ld. Civil Judge, Delhi. As per plaintiff, defendant had not paid the rent of tenanted premises from 01.07.2002 till date and he is claiming only legally recoverable rent w.e.f. 01.09.2002 upto 31.08.2005 in the present suit against the defendant.
RCA DJ NO. 120/2018 Page 4 of 19Viqar Ahmed Vs. Mahender Pal Jain through LRs
(iii).Plaintiff claimed that previous rent of the tenanted premises was Rs. 154/- which was enhanced to Rs. 169.40/- excluding other charges vide legal notice dated 14.02.2002. As per plaintiff, defendant is a chronic defaulter in payment of rent of tenanted premises and, hence, he is liable to pay simple interest @ 15% per annum w.e.f. 01.09.2002 upto 31.08.2005.
(iv).Plaintiff served a legal notice of demand dt.04.07.2005 on the defendant through registered cover and under certificate of posting but no reply has been received. Thus, defendant is also liable to pay Rs. 1,100/- as charges of the legal notice.
(v) As per plaintiff, following amount is due from the defendant towards him as under:-
(a) Rent of the tenanted premises from 01.09.2002 upto 31.08.2005 @ Rs. 169.40/- excluding other charges amounting to Rs. 5882.40/- (rupees five thousand eight hundred eighty two and forty paisa)
(b) Simple Interest @ 15% p.a. on Rs. 5,882.40/- from 01.09.2002 upto 31.08.2005 amounting to Rs.
2646.90/-
(c) Notice charges Rs. 1100/-
As per plaintiff, the total amount due from the defendant towards him is Rs.9629.30/- (nine thousand six hundred and twenty nine and thirty paisa). Plaintiff is further liable to pay pendente lite and future interest @ 15% till the realization of the whole amoun RCA DJ NO. 120/2018 Page 5 of 19 Viqar Ahmed Vs. Mahender Pal Jain through LRs WRITTEN STATEMENT ON BEHALF OF APPELLANT/DEFENDENT
3. Appellants/Respondents had filed the Written Statement on the following averments :
(i).In the written statement, the defendant has submitted that present suit is without any cause of action and same is liable to be dismissed. As per defendant, plaintiff has no locus standi to file and maintain the present suit as there exists no relationship of landlord and tenant between the plaintiff and him so no question arise of any amount of rent due from him towards the plaintiff. As per defendant his late father took the premises in question on rent from one Muslim prior to 1947 for residential cum commercial purpose.
However, the said owner left for Pakistan forever and the property in question was declared as Evacuee Property. Defendant claimed that Shri Bhagwan Dass purchased the property from the Custodian Department and Sh. Abdul Hameed, his father attorned to Sh. Bhagwan Dass and started paying the rent to him. However, after the death of Sh. Bhagwan Dass, his father Abdul Hameed started paying rent to Sh. Satpal Bhatia, the then landlord. His father Sh. Abdul Hameed also expired and he inherited the tenancy from his father and he was accepted as sole tenant by Shri Satpal Bhatia who started accepting the rent and issuing the rent receipt. As per defendant, the premises in question had always been used for commercial purpose only and he had been running his RCA DJ NO. 120/2018 Page 6 of 19 Viqar Ahmed Vs. Mahender Pal Jain through LRs businessunder the name and style of M/s. Ravi Enterprises i.e. the sister concern of M/s. Super Metal Works. The electricity meter is also installed for commercial purpose and the said business is duly registered with the Directorate of Industries. He got registered the said commercial firm at the suit premises with the concerned department and licence for running the said trade was also obtained at the suit premises. He is also receiving communications/correspondence, official letters and bills, vouchers etc. at the suit premises. Water connection is also for commercial purposes. The rent was also paid through the firm, by cheques. As per defendant, said Satpal Bhatia never objected to the use of the premises as the same was let out for commercial purpose.
(ii).As per defendant, the suit is not maintainable in view of the fact that the plaintiff entered into an agreement to sell with him on 07 th October, 1993 whereby the plaintiff agreed to sell the property in suit bearing no. 467 (new) 275 (old), Chitla Gate, Chawri Bazar, Delhi for a total consideration of Rs. 1,30,000/- and at the time of execution of the said agreement, he paid to plaintiff a sum of Rs. 50,000/- and the receipt of said amount was duly acknowledged by the plaintiff in the said agreement and also by a separate receipt of even date. Terms and conditions so agreed between the parties, are contained in the agreement. However, it was specifically agreed that the plaintiff will deliver the physical possession of the godown on the ground floor RCA DJ NO. 120/2018 Page 7 of 19 Viqar Ahmed Vs. Mahender Pal Jain through LRs on or before August, 1998 and then he will receive the balance of Rs. 80,000/- and will execute the sale deed thereby completely transferring the said property to him.
(iii).As per defendant, during the currency of the said agreement he requested the plaintiff to perform his part of the agreement, handed over the godown, receive the balance consideration and complete the sale but the plaintiff was always putting him off on one false pretext or the other and some time saying that the agreement is upto August, 1998 and nothing was to worry. As per defendant, he has been always ready and willing to perform his part of the contract and the balance amount of Rs. 80,000/- was always with him for payment. However, till date, the plaintiff has not performed his part of the contract under the said agreement and the agreement expired by the end of August, 1998. As the plaintiff has failed to complete the sale, so he filed a suit for specific performance against the plaintiff which is pending in the Court of Shri Praveen Singh, Civil Judge, Delhi. Accordingly, he has vested interest in the suit premises and the plaintiff is not entitled to seek any decree of money towards the alleged rent. As per defendant, the plaintiff has not come with clean hands, suppressed the true facts and as such he is not entitled to any decree.
4. The suit filed by the respondents/plaintiff was decreed vide judgment dated 01.06.2018 passed by the Ld. Trial Court. Being RCA DJ NO. 120/2018 Page 8 of 19 Viqar Ahmed Vs. Mahender Pal Jain through LRs aggrieved by the said judgment, the present appeal has been preferred by the appellants/defendants.
5. FINDINGS AND CONCLUSION It is urged on behalf of appellants that the impugned judgment and decree is against the facts and law of the case, so the same is not sustainable. The Learned Trial Court erred in deciding the issue No. 1 "Whether the plaintiff has locus standi to file the present suit? In this regard it is submitted that it is the immaterial that father of the appellant was tenant under earlier owner and the appellant has inherited the tenancy on demise of his father, and the plaintiff Mahender Pal Jain had purchased the property from previous owner, but the material is that the plaintiff Mahender Pal Jain entered into the agreement to sell thereby agreeing to sell the property bearing No. 467, to the appellant but later on the plaintiff failed to execute the sale deed and the appellant then filed suit for specific performance which was decreed. In view of this fact, the alleged tenancy between the parties stood extinguished/terminated and at the time of filing the suit for recovery, the relationship of landlord and tenant did not exist between the parties. Therefore, the plaintiff had no locus standi to file such suit. The Learned Court below has erred in emphasizing upon the provisions of Transfer of Property Act as the plaintiff waived his right of landlordship, when he entered into the agreement to sell and received the part payment towards the sale consideration. The appellant raised plea that there exists no relationship of landlord and tenant on the basis of the agreement to sell and not on any other basis. The Learned court RCA DJ NO. 120/2018 Page 9 of 19 Viqar Ahmed Vs. Mahender Pal Jain through LRs below failed to appreciate that the appellant entered into agreement of purchase with Mahender Pal Jain and the appellant in part performance of the agreement/contract paid the amount to Mahender Kumar Jain, and consequently the respondent waived the right of landlordship and the appellant continued in possession in pursuance of that contract of transfer. The Learned Court below has misconstrued and misinterpreted the citation titled as, "Smt. Joginder Kaur Vs. HUF of Kidarnath & Sons"
2000 (2) PLR 573. The Learned Trial Court failed to appreciate that the execution of agreement to sell was against part consideration of sale. The Learned Trial Court failed to appreciate that the appellant continued to possess the property in his own right as per the sale agreement and not in capacity of tenant. The learned Trial Court failed to appreciate that the appellant did acts in furtherance of the agreement to sell, as he has filed suit for specific performance which stands decreed in his favour. The Ld. Trial Court has erred in decreeing the instant suit for recovery filed by the respondent in view of the Judgment and Decree dated 01.06.2018 passed in favour of the appellant in suit for specific performance qua the agreement to sell dated 07.10.1993 in respect of property in question i.e. P. No. 467. The Learned Court below failed to appreciate that the sale agreement properly and failed to dig out the real effect and imports of the said agreement. The Learned trial court below failed to understand the real effect of mentioning that the defendant/appellant is already is in possession of first floor and above and the plaintiff/respondent is in possession of ground floor only and shall give possession by August, 1998, which averments establish that with the execution of sale agreement the RCA DJ NO. 120/2018 Page 10 of 19 Viqar Ahmed Vs. Mahender Pal Jain through LRs symbolic possession in respect of first floor and above stood transferred with the execution of agreement, and the physical possession of ground floor shall be given by August, 1998. So the alleged relationship of landlord and tenant ceased and came to an end with the execution of sale agreement. The Learned Trial Court erred in not relying upon the case law laid down by the Hon'ble Supreme Court in case titled as, "R. Kanthimathi & Ors. Vs. Mrs. Beatrice Xavier" AIR 2003 Supreme Court 4148. The Learned Court below erred in law in concluding that the alleged tenancy continued despite the execution of agreement. The Learned Court erred in deciding the issue No. 3 in favour of the plaintiff and erred in holding that tenancy continued. The Learned Court below erred in basing the judgment and decree on the alleged undertaking which was specifically denied by the appellant to have signed and executed. The Learned Court below ought to have held that the alleged tenancy stood ceased and the plaintiff has no locus standi and cause of action. The Learned Court below erred in deciding issue No. 4 in favour of the plaintiff, whereas the plaintiff was not entitled to any recovery.
6. POINTS FOR DETERMINATION In the aforesaid background, the following points for the determination arise for consideration in the present matter: -
(i) Whether the impugned judgment is contrary to the facts and evidence on record?
(ii) Whether the landlord-tenant relationship between the respondent and appellant has come to an end after execution of the agreement to sale dated
07.10.1993?
RCA DJ NO. 120/2018 Page 11 of 19Viqar Ahmed Vs. Mahender Pal Jain through LRs FINDINGS AND CONCLUSION
7. The appellant contends that the landlord tenant relationship between the respondent/plaintiff has come to end after execution of agreement dated 07.10.1993. Appellant had admitted that after the death of his father, he inherited the tenancy and was accepted as sole tenant by Shri Satpal Bhatia, the then landlord, who started accepting the rent and issuing the rent receipt to the appellant. Respondent/plaintiff purchased the suit property from Shri Satpal Bhatia and as per the case of the appellant/defendant, plaintiff and defendant entered into an agreement to sell dated 07.10.1993. Thus, appellant admits himself to be tenant of erstwhile owner and also admits the fact that the appellant purchased the suit property from the respondent. Ld. trial court has rightly relied upon section 8 and section 55(6)(a) of the transfer of property act. It is apposite to refer to section 8 and 55(6)(a) of the transfer of property act, which reads as under:
8. Operation of transfer.--Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof. Such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth; and, where the property is machinery attached to the earth, the moveable parts thereof; and, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows, and all other things provided for permanent use therewith; and, where the property is a debt or other actionable claim, the securities therefor (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transfer; and, where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect.
RCA DJ NO. 120/2018 Page 12 of 19Viqar Ahmed Vs. Mahender Pal Jain through LRs Section 55(6) The buyer is entitled--
(a) where the ownership of the property has passed to him, to the benefit of any improvement in, or increase in value of, the property, and to the rents and profits thereof;
Thus, as per section 8 and section 55(6)(a) of the transfer of property act, the transfer passes forthwith all the interests/legal incidents in the property held by the seller to the buyer including the rents. The next question is whether attornment by the previous landlord is mandatory. In Ambica Prasad v. Mohd. Alam, (2015) 13 SCC 13, the Hon'ble Supreme Court held that attornment is not necessary. Relevant extract of the judgment is reproduced hereunder:
15. On the question of tenancy, both the trial court and the High Court have not considered the provision of Section 109 of the Transfer of Property Act.
"109. Rights of lessor's transferee.--If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him:
Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee.
The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any court having jurisdiction to entertain a suit for the possession of the property leased."
From a perusal of the aforesaid section, it is manifest that after the transfer of lessor's right in favour of the transferee, the latter gets all rights and liabilities of the lessor in respect of subsisting tenancy. The section does not insist that transfer will take effect only when the tenant attorns. It is well settled that a transferee of RCA DJ NO. 120/2018 Page 13 of 19 Viqar Ahmed Vs. Mahender Pal Jain through LRs the landlord's rights steps into the shoes of the landlord with all the rights and liabilities of the transferor landlord in respect of the subsisting tenancy. The section does not require that the transfer of the right of the landlord can take effect only if the tenant attorns to him. Attornment by the tenant is not necessary to confer validity of the transfer of the landlord's rights. Since attornment by the tenant is not required, a notice under Section 106 in terms of the old terms of lease by the transferor (sic transferee) landlord would be proper and so also the suit for ejectment.
In the present case, the factum of transfer of property in favour of the plaintiff/respondent was well within the knowledge of the appellant and he has even entered into an agreement to sell with the plaintiff/respondent on 07.10.1993. Thus the respondent/plaintiff after purchasing the suit property stepped into the shoes of earlier landlord and the appellant/defendant cannot deny the status of the plaintiff. The next point for determination which arises in the present appeal is whether after execution of the agreement to sell dated 07.10.1993, the landlord-tenant relationship has come to an end and the appellant is occupying the property in part performance of the contract. Ld. trial court, has referred to section 54 in this regard and observed that an agreement to sell in itself does not create any interest in the property under transaction. Trial court has relied upon the judgment passed in Sunil V. Aghor AIR 1989 Gauhati 39 and Smt. Joginder Kaur V. HUF of Kedarnath & Sons 2000(2) PLR 573 and held that relationship of landlord-tenant would not come to an end merely because an agreement is alleged to have been entered into. It has been held that once the relationship of landlord and tenant had been continuing, necessarily so because possession has not been delivered in pursuance of any such agreement, the liability of the tenant to pay and tender the rent RCA DJ NO. 120/2018 Page 14 of 19 Viqar Ahmed Vs. Mahender Pal Jain through LRs continue. Trial court also relied upon judgment passed in Harkaran Singh & Ors. V. Financial Commissioner Haryana and Ors. 2003(2) PLJ 117
21. Pertaining to a tenant who is claiming himself to be in possession in part performance of the contract, the Court went on the hold and concluded:
"Therefore, the tenant must show either from the contract or some other material or evidence that he continued to possess the property not in the capacity as a tenant, for example, he does not pay the rent under one of the terms of contract of sale in order to show that his possession is not in the capacity as a tenant, but in part-performance of the contract. In addition to it, the tenant has to show that he has done some act in furtherance of the contract, such as payment of necessary taxes to show that he was liable to pay the taxes as his possession was no longer as that of a tenant. Therefore, if a tenant has been in possession in his capacity as a tenant and not in part-performance of the contract, he cannot take the plea of protection under Section 53A".
It has been contended by the Ld. Counsel for the appellant that the trial court erred in not relying upon the case law laid down by the Hon'ble Supreme Court in case titled as, "R. Kanthimathi & Ors. Vs. Mrs. Beatrice Xavier" AIR 2003 Supreme Court 4148. The facts of the present case are distinguishable from the said judgment as in the present case there is no condition showing the categorical surrender of possession to the tenant/vendee by the landlord/vendor. The Hon'ble Supreme court in H.K. Sharma v. Ram Lal, (2019) 4 SCC 153 while distinguishing the judgment passed in R. Kanthimathi observed as under:
30. A fortiori, the parties did not intend to surrender the tenancy rights despite entering into an agreement of sale of the tenanted property. In other words, if the parties really intended to surrender their tenancy rights as contemplated in clauses (e) or (f) of Section 111 of RCA DJ NO. 120/2018 Page 15 of 19 Viqar Ahmed Vs. Mahender Pal Jain through LRs the TP Act while entering into an agreement to sell the suit house, it would have made necessary provision to that effect by providing a specific clause in the agreement. It was, however, not done. On the other hand, we find that the conditions set out in the agreement do not make out a case of express surrender under clause (e) or implied surrender under clause (f) of Section 111 of the TP Act.
31. It is for this reason, the law laid down by this Court in R. Kanthimathi [R. Kanthimathi v. Beatrice Xavier, (2000) 9 SCC 339] has no application to the facts of this case and is, therefore, distinguishable on facts.
Indeed, it will be clear from mere perusal of para 4 of the said decision quoted hereinbelow: (SCC p. 341) "4. As aforesaid, the question for consideration is, whether the status of tenant as such changes on the execution of an agreement of sale with the landlord. It is relevant at this junction first to examine the terms of the agreement of sale. The relevant portions of the agreement of sale record the following:
'I the aforesaid Mrs Beatrice Xavier hereby agree out of my own free will, to sell, convey and transfer the property to you Mrs R. Kanthimathi wife of Mr S. Ramaswami, 435 Trichy Road, Coimbatore for a mutually agreed sale consideration of Rs 25,000. I shall be proceeding to Coimbatore and shall execute the sale deed and present the same for admission and registration before the Registering Authority, accepting and acknowledge payment of the balance of consideration of Rs 5000 (Rupees five thousand only) at the time of registration and shall complete the transaction of sale and conveyance as the property demised has already been surrendered to your possession.'"
(emphasis in original) The words highlighted in italics of the agreement were construed by their Lordships for holding that these italicised words in the agreement clearly indicate that the parties had really intended to surrender their tenancy rights on execution of the agreement of sale and bring to an end their jural relationship of the landlord and tenant.
Agreement to sell in the present case does not contain any specific clause which shows the surrender of tenancy rights by the defendant and that the defendant/appellant is occupying the suit property in part performance of the agreement dated RCA DJ NO. 120/2018 Page 16 of 19 Viqar Ahmed Vs. Mahender Pal Jain through LRs 07.10.1993. The agreement only lay down that defendant is already in possession of the first and second floor and the plaintiff is in possession of the ground floor only and shall give the possession of the ground floor to the defendant by August, 1998 or at the time of registration of sale deed. Thus there is no stipulation in the agreement that the nature of possession of the defendant/appellant has changed and the landlord-tenant relationship has come to end. In Arun Kumar Tandon v. Akash Telecom (P) Ltd., 2010 SCC OnLine Del 918, the Hon'ble High Court observed as under:
8. Even if this Agreement to Sell is looked into, the Agreement to Sell does not say that no rent shall be payable to the landlord even if no sale deed is ever executed. It only talks of retaining possession and does not talk that the right of the landlord to receive rent came to an end.
9. It is undisputed that the tenancy was created by a written instrument for a period of 11 months. The tenancy came to an end by a efflux of time. It is not the case of the respondent that the tenancy continued after period of 11 months came to an end. The case of the respondent is that tenancy merged into his rights. Determination of lease by merger is provided under Section 111(d) of Transfer of Property Act, which reads as under: --
"111 Determination of lease-- A lease of immoveable property determines--
(d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right."
It is clear that merger takes place when tenant himself becomes the absolute owner of tenanted premises, which is not the case here.
10. I, therefore, consider that the trial court could not have given benefit of Section 53A of Transfer of Property Act to respondent under any circumstances even if a suit for specific performance filed by respondent No. 2 was pending. Pendency of a suit for specific performance would not have debarred the court below from looking into the document relied RCA DJ NO. 120/2018 Page 17 of 19 Viqar Ahmed Vs. Mahender Pal Jain through LRs upon by the respondent and the effect of the document as to whether such a document can even be looked into by the court for any purpose whatsoever. When the document itself could not be looked into, the question of giving benefit to respondent on the basis of this document would not arise. It was obligatory on the court below to be aware of the law and to apply the law as it stood. Section 17(1)A of the Registration Act and Section 35 of the Indian Stamp Act were very much there on the statute book. No plea can be taken that these sections were not brought to the notice of the court. Like any other citizen of this country, Judges are also supposed to know the law and apply correct law. Benefit of Section 53A could not have been given to the respondents of a document which could not be looked into. If this document is not looked into, the respondents continue to be in possession unauthorizedly, after expiry of the lease agreement and the respondents were liable to pay the arrears of rent and monthly rent during pendency of the suit to the petitioner as reflected by the lease agreement.
In the present case, the agreement to sell is unregistered and thus no benefit of section 53A of the Transfer of Property Act will accrue to the appellant/defendant. Further there is no clause in the agreement that no rent will be paid to the landlord even if no sale deed is ever executed. Thus I do not find any merits in the grounds urged in the present appeal. Further the Ld. trial court has rightly concluded that the plaintiff/respondent is entitled to rent @40 per month as the defendant has himself relied upon the rent receipt issued by the earlier landlord @ Rs. 40 per month. Accordingly I do not find any illegality in the impugned judgment and decree dated 01.06.2018 passed by the Ld. trial Court.
8. In view of the discussions, as adumbrated above, I hereby pass the following:
RCA DJ NO. 120/2018 Page 18 of 19Viqar Ahmed Vs. Mahender Pal Jain through LRs :: - FINAL ORDER - ::
A. The regular civil appeal of the appellants/defendants is hereby dismissed.
B. The Parties shall bear their own respective costs.
9. The copy of this Judgment may kindly be sent forthwith to the Ld. Trial Court alongwith the record of Trial Court.
10. Decree-sheet in the Appeal be prepared accordingly, in terms of this Judgment.
Appeal file be consigned to record room after due compliance.
Announced in the open court on this 25th Day of September, 2023 (Alok Shukla) ADJ-07 (Central) Tis Hazari Courts, Delhi RCA DJ NO. 120/2018 Page 19 of 19