Orissa High Court
Lachaman Nepak And Ors. vs Badankayalu Syama Babu Subudhi And Anr. on 2 January, 1989
Equivalent citations: AIR1989ORI154, AIR 1989 ORISSA 154
JUDGMENT Agrawal, C.J.
1. This application is by the successors-in-interest of the original tenant Govinda Nepak against the order dt. 4-8-1987 (Annexure-1) passed by the Chief-Judicial Magistrate, Berhampur, refusing to stay the hearing of an appeal filed by Govinda Nepak against the order of the House Rent Controller for his eviction from the premises in question. Although the impugned order does not discuss the merits of the grounds on which the prayer for stay was made, it was submitted that the appellant had prayed for staying the hearing of the appeal on two grounds, namely, (1) the Title Suit between the same parties was disposed of by the Chief Judicial Magistrate herself while she was the Subordinate Judge; and (2) pendency of the Title Appeal before the District Judge, Berhampur.
2. The first ground for stay has now become infructuous since the Chief Judicial Magistrate has in the meantime been promoted as an Additional District Judge, Therefore, the merit of the second ground, namely, the pendency of the Title Appeal, only has to be gone into for deciding the question of stay for which the facts of the case have lo be briefly noticed.
3. Undispuledly, Kasinath Subudhi was the original owner of the house and Govinda Nepak was inducted as a tenant in the said house during his life time. On 12-7-1977, Kasinath sold the house by a registered sale deed to Badankayalu Syama Babu Subudhi, opposite party No. 1, who also sent a letter of attornment to the tenant. But since no rent was paid by him to the purchaser-landlord, he instituted an eviction proceeding in the court of the House Rent Controller, Berhampur, on 1-3-1978. A few days thereafter, the tenant Govinda Nepak instituted a Title Suit before the Subordinate Judge for declaring the sale deed in favour of opposite party No. 1 as invalid and for specific performance of an alleged oral agreement for sale dt. 8-3-1975 between Kasinath Subudhi and himself.
The eviction case was allowed on 13-4-1983 against which an appeal was filed before the Chief Judicial Magistrate, Berhampur, by Govinda Nepak followed by a stay petition giving rise to this writ application as stated earlier.
4. By the way, it may be mentioned that the Title Suit for specific performance of contract was dismissed for default in Oct. 1982, but was ultimately restored by this Court in Misc. Appeal No. 20 of 1984 in May, 1986. The Title Suit No. 23 of 1978 was, however, dismissed by the trial court on 12-12-1986, against which Title Appeal No. 3 of 1987 is pending in the court of the District Judge.
5. J t has been submitted with vehemence by Sri Ranjit Mohanty, learned Advocate appearing for the petitioners, that unless the hearing of the eviction appeal is stayed till disposal of the Title Appeal, the petitioners will suffer irreparable loss and substantial injury since the Title Appeal will be rendered infruetuous.
6. 1 do not find any substance in the submission of Mr. Mohanty. Undispuledly, the petitioners do not have any semblance of title to the suit premises. It is an admitted fact that Govinda Nepak was occupying the premises as a tenant of Kasinath Subudhi who transferred his right, title and interest in the premises in favour of O.P.I. It is no doubt true that Govinda Nepak instituted a Title Suit for specific performance of the oral: agreement between him and Kasinath Subudhi claiming to have been entered prior to the execution of the sale deed in favour of O.P.I. It is elementary that until the plaintiff succeeds in the Title Suit leading lo the execution of the sale deed in his favour, he cannot claim any title or even any semblance of interest therein. It is well settled that existence of an agreement for sale does not of itself create any interest in or charge on such property. S. 54 of the T.P. Act itself has specifically made the position beyond the pale of any doubt, the relevant portion of which reads as follows : --
"54..........................
A contract for the sale of immoveable properly is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property."
The mode of transfer of any immoveable properly is also well known which may be made either by registered instrument or by delivery of possession. Property does not pass on to the transferee until its registration is effected. By reason of Section 47 of the Registration Act, title can relate back not beyond the date of the execution of the sale deed for the purposes of priority, on effecting the registration. It is no doubt true that the findings recorded in the eviction proceeding by the House Rent Controller would work as res judicata in view of the newly added Explanation-VII to S. 11 of the Civil P.C. as held by me recently in the case of Bijay Kumar v. Durgabai Sharma Civil Revn. No. 853 of 1986 disposed of on 28-9-1988 sitting in a Division Bench. The rigour of res judicata on the facts and in the circumstances mentioned above is not likely to work any prejudice or hardship to the petitioners in their civil action for specific performance of their contract for sale as in that case the title of the present landlord would be defeated by acquisition of a title paramount by the plaintiff. But on that account, they cannot deny the title of the rival purchaser (O.P.I) until that eventuality takes place. 1 n that view of the matter, I have got no doubt in my mind to hold that the grounds pressed into service by the petitioners for slaying the disposal of the eviction appeal are baseless.
7. Before parting, I may also state that the petitioners have cited some authorities which 1 do not even notice as they were all relating to the merits of their claim in the civil action. The facts stated show how a simple case instituted by O.P.I for eviction of the tenant under the House Rent Control Act, proceeding whereof is summary in nature, has been protracted and has prolonged for ten years. His misery is not going to end even after the disposal of the appeal of the tenant as the appellate order may again be challenged under the writ jurisdiction of this Court.
8. The writ application, therefore, must' fail and is dismissed, but in the circumstances of the case, I leave the parties to bear their own costs.
L. Rath, J.
9. I agree.