Allahabad High Court
Mishri Lal Karank vs Sri Dinesh Chandra Agarwal And Others on 1 October, 2012
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 17.09.2012 Delivered on 01.10.2012 Court No. - 7 Case :- WRIT - A No. - 12809 of 2003 Petitioner :- Mishri Lal Karak Respondent :- Sri Dinesh Chandra Agarwal And Others Petitioner Counsel :- Kshitij Shailendra,Shailendra Kumar Johri Respondent Counsel :- A.K. Gupta,M.K. Gupta,SC,Swapnil Kumar Connected with Case :- WRIT - A No. - 34723 of 2010 Petitioner :- Mishiri Lal Karak Respondent :- Dinesh Chandra Agrawal Petitioner Counsel :- Arvind Srivastava,Kshitij Shailendra Respondent Counsel :- A.K. Gupta,M.K. Gupta,Swapnil Kumar And Case :- SECOND APPEAL No. - 1355 of 2010 Petitioner :- Mishri Lal Karak Respondent :- Kunj Bihari Lal Gupta & Others Petitioner Counsel :- Kshitij Shailendra Hon'ble Sudhir Agarwal,J.
1. These two writ petitions and the second appeal relate to the same property. The parties are also common.
2. The second appeal has been nominated to this Court by Hon'ble Chief Justice's order dated 31.8.2012 passed in Writ Petition No.12809 of 2003.
3. Since pleadings are complete, as agreed and requested by learned counsel for the parties, I have heard all these cases together and proceed to decide the same by this common judgment.
4. Sri Kshitij Shailendra, Advocate has appeared on behalf of petitioner as well as appellant, the same person, namely Mishri Lal Karak, Son of Shri Sito Karak (hereinafter referred to as "petitioner"). Sri Ravi Kant, Senior Advocate assisted by Sri Swapnil Kumar has put in appearance on behalf of Sri Dinesh Chandra Agrawal, respondent No.3 in the second appeal and respondent No.1 in both the writ petitions (hereinafter referred to as "respondent-landlord").
5. The dispute relates to a house measuring about 200 sq. yards situated at Mohalla Azad Road, Chandausi. It was owned by Sri Kunj Bihari Lal and his wife Smt. Angoori Devi. The petitioner came to be inducted as tenant sometimes in 1991 and started paying rent to the then owners/landlords namely Kunj Bihari Lal and Angoori Devi. The petitioner claimed that an agreement to sell the disputed house was executed by the above co-owners with the petitioner on 29th March, 1992. A copy of the aforesaid agreement is on record as Annexure 1 to the writ petition No.34723 of 2010. The petitioner claimed that sale of the house was agreed on a consideration of Rs.1,10,000/- out of which Rs.35,000/- (Rs.10,000/- and Rs.25,000/-) was paid on or before the date of execution of the agreement dated 29.3.1992. Further, the petitioner was to pay Rs.25,000/- by 15th June, 1992 and Rs.50,000/- at the time of execution of sale deed i.e. by 30th August, 1992. The agreement admittedly was not registered though so required under the provisions of Registration Act, 1908 (hereinafter referred to as "Act, 1908").
6. The erstwhile owners, however, executed a sale deed, duly registered, on 6th August, 1993 in favour of Dinesh Chandra Agarwal son of Sri Ram Prasad Agarwal (the respondent-landlord) for a portion of disputed building i.e. about 48 sq. yards and for rest of the area, another sale deed with the aforesaid respondent-landlord was executed on 26th August, 1994.
7. After execution of first sale deed, the respondent-landlord filed an application dated 10th January, 1994 under Section 21(1)(b) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") for eviction of petitioner so as to demolish the building for its reconstruction. The aforesaid application was registered as Case No.1 of 1994 before Prescribed Authority, Chandausi. Simultaneously, a notice was also given by respondent-landlord terminating his tenancy.
8. The petitioner contested the same by filing written statement dated 23rd January, 1995. He also filed an original suit No.17 of 1995 (subsequently renumbered as O.S No.719 of 2000) against Sri Kunj Bihari Lal and his wife Smt. Angoori Devi for specific performance.
9. It is an admitted case of the parties that Kunj Bihari Lal and his wife Angoori Devi did not contest the suit at all. On the contrary respondent-landlord filed a Small Cause Suit No.7 of 1995 in the Small Cause Court seeking ejectment of petitioner from the disputed building, on the ground of Section 20(2)(a) of Act, 1972 i.e. default in payment of rent, having already received notice dated 10.1.1994 determining tenancy of the petitioner.
10. It is said that during pendency of the proceedings, an application was filed by petitioner before Prescribed Authority and vide order dated 14th August, 1996 he was permitted to carry out certain repairs in the disputed building. The said order of repair was challenged by respondent-landlord in Writ Petition No.27692 of 1996 but the writ petition was dismissed on 21st September 2010 as infructuous.
11. The Prescribed Authority vide order dated 1st February, 1997 allowed release application filed under Section 21(1)(b) of Act, 1972 whereagainst petitioner filed Rent Control Appeal No.2 of 1997 which was dismissed vide Appellate Court's judgement dated 10th March, 2003. The writ petition No.12809 of 2003 (hereinafter referred to as "first petition") has been filed by the petitioner assailing these two orders dated 1.2.1997 of Prescribed Authority and 10th March, 2003 of Appellant Authority.
12. In the aforesaid writ petition, respondent-landlord has been impleaded as respondent no.1 and respondents no.2 and 3 are formal parties i.e. Prescribed Authority and Appellant Court.
13. S.C.C.Suit No.7 of 1995 filed by respondent-landlord was dismissed by Small Cause Court, Chandausi vide judgment and order dated 31st July, 2008 on the ground that on 10th January, 1994, the respondent-landlord did not own the entire property in dispute and therefore, notice terminating tenancy given on 10th January, 1994 was illegal. There was no relationship of landlord and tenant on that date and hence eviction under Section 20(2)(a) of Act, 1994 could not have been sought by him. The matter was taken in revision i.e. S.C.C. Revision No.32 of 2008 and learned Revisional Court i.e. Additional District Judge, Chandausi vide judgment dated 3rd March, 2010 allowed the revision, set aside Trial Court's judgment dated 31st July, 2008 and decreed the suit. He directed the petitioner to hand over vacant possession of the property in dispute to respondent-landlord. He has also decreed recovery of arrears of rent/damage for the period of 6th August, 1993 to 13th March, 1995 and the mesne profit. The Writ Petition No.34723 of 2010 (hereinafter referred to as "second petition") has been filed by petitioner challenging revisional judgment dated 3.3.2010.
14. Now comes petitioner's own suit i.e. Original Suit No.17 of 1995 (renumbered as 719 of 2000). The suit was dismissed by Trial Court, i.e. Civil Judge, Senior Division, Chandausi vide judgment dated 30th August, 2007, whereagainst petitioner preferred Civil Appeal No.110 of 2007 which was dismissed by Appellate Court vide judgment dated 16th September, 2010. The second appeal no.1355 of 2010 has been filed aggrieved by the aforesaid two judgments. The appeal was presented in the Registry on 15th December, 2010 and it could not be listed for admission. On 16th August, 2011 Sri Mishri Lal Karak (plaintiff-appellant) died. Vide order dated 7th September, 2012, legal heirs/representatives of deceased petitioner have been brought on record.
15. Now, only one more fact may be mentioned, which will have some relevance for considering these matters on merits. In the original suit filed by petitioner, besides the two erstwhile owners namely Sri Kunj Bihari Lal (now died) and Smt. Angoori Devi, widow of late Kunj Bihari Lal, the respondent-landlord was also a party, as defendant no.3. The defendants no.1 and 2 i.e. the erstwhile owners did not contest the matter at all. It has been contested by defendant no.3 namely the respondent-landlord. Therefore, for all practical purpose, entire dispute, in all these matters, is between the petitioner and the respondent-landlord.
16. First of all I take up petitioner's second appeal. Seven substantial questions of law have been framed in the memo of appeal which in substance are, whether agreement dated 29th March, 1992 was compulsorily registrable or not so as to confer benefit upon the petitioner/appellant; whether in absence of any contest by executants of agreement dated 29th March, 1992, subsequent transferee i.e. contesting respondent could maintain his defence in a suit for specific performance of the agreement; whether the respondent-landlord could have validly determine tenancy of the petitioner on 10th January, 1994 though the sale deed executed by that time in his favour covered a smaller area of the total property in dispute and/or whether respondent-landlord can be said to be authorized and entitled to determine tenancy of the petitioner by issuing notice on 10th January, 1994; whether proceedings under Section 21(1)(b) at the instance of subsequent transferee were maintainable having been initiated on the date he had not become owner of the entire property; whether relationship of petitioner with erstwhile owner ceased to be that of landlord and tenant after execution of agreement dated 29th March, 1992.
17. I find that Trial Court had framed nine issues including whether alleged agreement dated 29th March, 1992 was actually executed by defendants no.1 and 2 or not. The issue was decided in favour of petitioner holding that agreement was executed by defendants no.1 and 2 though it is also admitted that it was not registered. This issue has not been contested before me.
18. However, issue no.2, whether pursuant to agreement dated 29th March, 1992, petitioner was given possession/ authority over the property in dispute has been decided against the petitioner holding, that, since he was already in possession of disputed property and continued in possession, in order to show "something has been done" as provided in Section 53A of Transfer of Property Act, 1882 (hereinafter referred to as "Act, 1882") pursuant to agreement dated 29th March, 1992, he failed to show some further action on his part. It is in this context issues no.3 and 8, which were framed with reference to Section 53A of Act, 1882 read with Section 17 of Act,1908 were considered and decided against the petitioner. The Appellate Court has completely concurred with the decision of Trial Court on these issues. Since the above substantial issues stood decided against petitioner, his suit was dismissed.
19. I propose to consider first the question, whether agreement dated 29.3.1992 ought to have been registered compulsorily and if not so registered, its consequences, legal or otherwise, if any. Simultaneously, I shall also consider the issue involving Section 53A of Act, 1882.
20. Section 17 of Act, 1908 provides for documents, registration whereof is compulsory. There is an amendment made by U.P. Act No.57 of 1979 by inserting clause (f) in Section 17(1). The amended provision i.e. Section 17(1), (as amended in U.P.), reads as under:
"17. Documents of which registration is compulsory.-(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866(XX of 1866), or the Indian Registration Act, 1871 (VII of 1871, or the Indian Registration Act, 1877(III of 1877), or this Act came or comes into force, namely:-
(a) instruments of gift of immovable property;
(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, to or in immovable property;
(c) non-testamentary instruments, which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest;
(d) leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent; and
(e) non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, to or in immovable property.
(f) any other instrument required by any law for the time being in force, to be registered."
21. There is also a corresponding amendment in sub-section (2) of Section 17, inasmuch as, Clause (v), as it stood before Central Act 48 of 2001 was substituted partially vide Section 3 of Central Act 48 of 2001, w.e.f. 24th September, 2001. However, there was already an amendment therein by U.P. Act No.57 of 1976. On 29th March, 1992, when the agreement in question was executed, sub section (2) of Section 17, as amended in U.P,. was operating in the following manner:
"(2) Nothing in clauses (b) and (c) of sub-section (1) applies to -
(i) any composition deed; or
(ii) any instrument relating to shares in a Joint Stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property; or
(iii) any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or
(iv) any endorsement upon or transfer of any debenture issued by any such Company; or
(v) any document other than contract for sale not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or
(vi) any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding; or
(vii) any grant of immovable property by Government; or
(viii) any instrument of partition made by a Revenue-Officer; or
(ix) any order granting a loan or instrument of collateral security granted under the Land Improvement Act, 1871 (XXVI of 1871), or the Land Improvement Loans Act, 1883 (XIX of 1883); or
(x) any order granting a loan under the Agriculturists, Loans Act, 1884 (XII of 1884); or instrument for securing the repayment of a loan made under that Act; or (x-a) any order made under the Charitable Endowments Act, 1890, (VI of 1890), vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or
(xi) any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or
(xii) any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-Officer."
22. There is sub section (1A) in Section 17 which was inserted by Central Act 48 of 2001 w.e.f. 24.9.2001 but the same is not relevant for the present case hence is being omitted.
23. A corresponding amendment was also made in Act, 1882 by Section 30 of U.P. Act No.57 of 1976, w.e.f 1.1.1977. Section 54, as amended in U.P., reads as under:
"54 "Sale" defined.- "Sale" is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made.- Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
Contract of sale.- A contract for the sale of immovable property 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.
Such contract can be made only by a registered instrument."
(bold portion demonstrates U.P. Amendment)
24. Consistent with the above amendments, referred to above, Section 49 of Act, 1908 was also simultaneously amended by Section 34 of U.P. Act No.57 of 1976 w.e.f. 1.1.1977 and the amended Section 49, as applicable in U.P. in 1992 read as under:
"Section 49. Effect of non-registration of documents required to be registered.- No document required by section 17 or by any provision of the Transfer of Property Act, 1882 (4 of 1882) or of any other law for the time being in force, to be registered shall-
(a) affect any immovable property comprised therein, or
(b) confer any power or create any right or relationship, or
(c) be received as evidence of any transaction affecting such property or conferring such power or creating such right or relationship, unless it has been registered:
Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of part-performance of a contract for the purposes of Section 53-A of the Transfer of Property Act, 1882 (4 of 1882), or as evidence of any collateral transaction not required to be effected by registered instrument."
25. The first question would be, whether an unregistered document, in view of specific provisions contained in relevant statutes as applicable in U.P. at the time when agreement dated 29.3.1992 was executed, could have conferred any right upon the petitioner, for any purpose whatsoever.
26. The aforesaid provisions make it clear that an agreement to sell in respect of immovable property lying in State of U.P. required registration necessarily i.e. compulsorily. Section 17 of Act, 1908 read with Section 54 of Act, 1882, as applicable in U.P., make it very clear that a contract of sale, as defined in Section 54, can be made only by a registered instrument.
27. I find no hesitation in holding that in 1992, a contract for sale, as defined in Section 54 of Act, 1882, was compulsorily registrable. By omission of explanation to sub-section 2 of Section 17 of Act, 1908, the legislature has made it very clear that in State of U.P., an agreement to sell immovable property would also be require compulsorily registered so as to create any right, title or interest in immovable property, if any. My view find support from recent decision of this Court in Smt. Prabha Awasthi Vs. Nisha Richharia & Anr, 2012 (8) ADJ 557, wherein a Division Bench referring to Section 17 of Act, 1908, as amended in U.P. w.e.f. 1.4.1977, read with Section 49, has observed as under:
"Section 17 of the Registration Act, 1908 has been amended in the State of U.P. vide U.P. Act No.57 of 1976 w.e.f. 1st of April, 1977 by amending clause (b) of sub section (2) and by omitting the Explanation thereto of section 17 of the Registration Act. It follows that after the commencement of the aforesaid Amending Act, an agreement to sell in respect of immovable property lying in the State of U.P. necessarily requires registration. A document which necessarily requires registration being unregistered one cannot be read in evidence in view of section 49 of the aforesaid Act. It deals with the effect of non registered document required to be registered. Noticeably, section 49 of the Registration Act was also amended by the U.P. Act No.57 of 1976 vide section 34 simultaneously."
28. Though dispute before Division Bench in Prabha Awasthi (supra) related to an agreement executed in 2005 but while having a retrospect of the provisions of Act, 1908, as amended in U.P. in 1977, and the situation as had arisen thereof, the Court has made above observations.
29. However, this by itself may not result in any decisive conclusion in the present case since proviso to Section 49 of Act, 1908 permits an unregistered document to be received as evidence of part-performance of a contract for the purpose of Section 53-A of Act, 1882.
30. This Court finds that permitting document to be received in evidence for limited purpose as such would not have the effect of influencing the rights of the parties vis a vis the immovable property concerned. The general legislative policy under Section 49 of Act, 1908 is contained in three clauses i.e. (a), (b) and (c) and proviso carves out an exception in respect to clause (c) only and not (a) and (b) thereof. The inevitable conclusion vis a vis the immovable property concerned is that, an unregistered document shall not result in affecting the right etc. over the immovable property in any manner and also shall not confer any power to adopt it. To the extent the proviso operates, it permits that an unregistered document affecting immovable property may be given in evidence i.e. where a document remains unregistered and title does not pass, the agreement between the parties which preceded the ineffective document shall remains and may be received in evidence to look into the terms thereof. This by itself would not confer any right since no such right has been conferred under the substantive law. Receiving in evidence does not mean conferment of substantive right. The rule of evidence cannot enlarge or alter the provisions of substantive law. It cannot confer rights, if there are none under the substantive law. In other words, such a document could be used only for the purpose permissible under proviso to Section 49 of Act, 1908 so as to establish part-performance under Section 53A of Act, 1882 but cannot be admitted in evidence to show nature of possession, if the possession was continuing from some date prior to the execution of unregistered deed. Here I find support from Apex Court decision in Kripal Kaur Vs. Bachan Singh, AIR 1958 SC 199.
31. In the present case, however, I will not be required to labour much on the effect and consequences of agreement dated 29th March, 1992 on account of conduct shown by petitioner himself in non observance of the conditions/terms stipulated in the said agreement resulting in its nullification. So far as the rights, if any, against the property in question is concerned, the petitioner admittedly paid, before execution of agreement dated 29th March, 1992, Rs.10,000/- and Rs.25,000/- i.e. total sum of Rs.35,000/- till the date of agreement i.e. 29th March, 1992 against total consideration of Rs.1,10,000/-. The agreement further required that the petitioner shall pay Rs.25,000/- upto 15th June, 1992 and remaining amount of Rs.50,000/- at the time of sale deed, which he was obliged to have executed by 30th August, 1992. The agreement shows that time was the essence of its observance. Admittedly, these two amounts i.e. Rs.25,000/- and Rs.50,000/- were not paid by the petitioner at all. In fact after execution of agreement dated 29th March, 1992, no amount whatsoever was paid by the petitioner to the erstwhile owners.
32. The agreement itself contemplates consequences of non-compliance of conditions provided therein. It says that in case Sri Mishri Lal Karak failed to get sale deed executed by 30th August, 1992, the amount he has already paid to other side namely Kunj Bihari Lal and Smt. Angoori Devi shall stand forfeited by them. It also provided, in case Sri Mishri Lal Karak comply with the conditions during the period by which the sale deed was to be got executed i.e. 30th August, 1992 but during that period, other side, namely Kunj Bihari Lal and Smt. Angoori Devi, decline to execute sale deed, they shall repay (refund) the amount already received, along with interest @ 18% p.a. The stipulations thus make it clear that in case of compliance of each and every condition therein, the sale deed had to be executed in any case by 30th August, 1992 whereafter in case of failure of either of the parties, the agreement shall stand nullified for all purposes.
33. It is not disputed that though at the time of agreement i.e. 29.3.1992 in total a sum of Rs.35,000/- had been paid to erstwhile owners but the very next instalment of consideration i.e. Rs.25,000/-, which was payable by 15.6.1992, was not paid. Further, there has been nothing on record to show that the petitioner made any effort to get the sale deed executed by 30th August, 1992. Though he took the stand in Courts below that he reached the Sub-Registrar's office on 25.8.1992 having paid Rs.65,000/- between 29.3.1992 and 16.8.1992 but the erstwhile two owners did not reach Registrar's office. However, as a matter of fact, he has not been able to prove it before the Courts below. A concurrent finding of fact thus has been recorded by both the Courts below against the petitioner.
34. Before this Court, Sri Kshitij Shilendra, learned counsel for the petitioner has not been able to show any manifest error or perversity in the finding recorded by both the Courts below on this aspect. Therefore so far as this Court is concerned, this is a proved fact that the agreement dated 29.3.1992 was not complied at all. Hence in the eyes of law, the unregistered agreement, nonetheless, ceased to have any effect on either of the parties, after 30th August, 1992.
35. Not only this, even if something is read in favour of petitioner that for the purpose of Section 53A, still he may have some kind of right, entitlement etc., I find that even Section 53-A would have no application to the present case.
36. Section 53A of Act, 1882 reads as under:
"Part performance.- Where any person contracts 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 :
and 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 and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, 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 shall be debarred from enforcing against the transferee and persons claiming under him 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:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.
37. In order to take shelter behind the above provision, one has to satisfy the following conditions as are evident from bare reading of Section 53A:
(i) The contract should have been in writing, signed by or on behalf of transferor.
(ii) The transferee should have got possession of immovable property covered by contract as a part-performance of the contract.
(iii) If the transferee is already in possession and he continues in possession in part-performance of the contract, he further should have done some act in furtherance of the contract.
(iv) The transferee has either performed his part of contract or is willing to perform his part of the contract.
38. It has been held repeatedly that all the postulates of Section 53A are sine qua none and a party cannot derive benefit by fulfilling only one or more conditions. It must have to satisfy all the conditions altogether. In taking the above view I am fortified by Apex Court decisions in FGP Limited Vs. Saleh Hooseini Doctor & Anr. (2009) 10 SCC 223 (Paras, 24, 25, 26, 27, 28, 29 & 30), Nanjegowda & Anr. Vs. Gangamma & Ors. (2011) 13 SCC 232 (paras 9 to 12 and Shrimant Shamrao Suryavanshi & Anr. Vs. Prahlad Bhairoba Suryavanshi (D) by Lrs. & Ors. JT 2002(2) SC 24.
39. In para 17 of the judgment in Shrimant Shamrao Suryavanshi & Anr. (supra) the Apex Court after noticing various conditions applicable in Section 53A, has said:
"We are, therefore, on the opinion that if the conditions enumerated above are complied with, the law of limitation does not come in the way of a defendant taking plea under section 53-A of the Act to protect his possession of the suit property even though a suit for specific performance of a contract is barred by limitation."
40. In the present case the petitioner has failed to prove that he has done some act in furtherance of the contract and also that he was willing to perform his part of the contract during the period the contract was operational. That being so, I am of the view that Section 53A of Act, 1882 would not come to his rescue.
41. In the written arguments submitted to this Court, Sri Kshitij Shailendra had placed reliance on Sub-Section 1-A of Section 17 of Act, 1908 but I find this reliance totally misconceived, inasmuch as, learned counsel has failed to notice that sub section 1-A was inserted in the statute by Central Act 48 of 2001 w.e.f. 24.9.2001. Hence it was not available to the petitioner in the present case. The amendment made in Central Act in 2001 by inserting sub-section 1-A in Section 17 of Act, 1908 has not been shown to be retrospective so as to have any consequence on the past transaction. Therefore, by no stretch of imagination, it would benefit the petitioner to any extent whatsoever. Even otherwise, amendments made in the Central Act in 2001 by itself would not have much relevance for the State of U.P. since there was already a similar amendment in the two statutes namely Act, 1908 and Act, 1882 made as long back as in 1977. Therefore exception carved out in Section 1-A of Section 17 in respect to the documents executed earlier would make no difference so far as this case is concerned, which has to be tried, in the State of U.P., as per the law applicable in 1992.
42. The issue relating to the Registration and application of Section 53-A of Act 1882 are answered accordingly.
43. The next question is, whether respondent was competent enough to issue notice to the petitioner for determining his tenancy on 10.1.1994 though no sale deed covering entire property in dispute is said to have been executed till that date. The necessary but incidental question here would be whether respondent can be said to be landlord of the petitioner on the date when notice was given.
44. It is not in dispute that sale deed was executed by erstwhile owners Sri Kunj Bihari Lal and Smt. Angoori Devi in favour of respondent no.1 on 6/23rd August, 1993. A copy of the aforesaid sale deed is on record as Annexure C.A.1 to the counter affidavit in second petition. It gives boundary of entire disputed property and mention that entire property has been sold out to the vendee, consideration in lieu thereof has been paid to vendor, and possession of property has also been transferred whereafter vendor shall have no interest or right etc. in the property in question. However, the vendee having not been able to arrange the entire requisite stamp duty is getting the registration on the valuation of only 48 sq.yard of the total 180.56 sq.yard of the land and shall execute sale deed for remaining part of the disputed property after payment of requisite stamp fee as and when he would be able to do so. But so far as vendor is concerned, no consideration remained unpaid as the entire amount was already paid. The relevant stipulations contained in the sale deed dated 6/23rd August, 1993 reads as under:
^^lEifRr dk leLr fodz; ewY; [kjhnkj us cspk dks vnk dj fn;k gSA vc dksbZ iSlk [kjhnkj ij ckdh ugha jgkA og tc pkgsa cfd;k tehu dk cSukek dsoy LVkEi vnk djds djk ldrk gSA^^ "'Entire sale price of the property has been paid by the vendee to the vendor. Now no amount is due to be paid by the vendee. He may get the sale deed of rest of the land executed only by paying stamp as and when he wants."
(English Translation by the Court)
45. Later on parties got registered another sale deed on 26.8.1994 in which reference of earlier sale deed dated 6/23rd August, 1993 was made. It clearly stated that it was in continuation thereof. It reiterated that vendor had already received entire consideration.
46. Admittedly, as per the understanding of petitioner, even, if not for the entire property in question, still respondent no.1 entered into the shoes of erstwhile owners in respect to part of property. Regarding rest of the part of the property, the sale deed dated 6/23rd August, 1993 clearly mentions that so far as vendor is concerned, he has received the entire consideration and has surrendered all his rights etc. in respect to entire property in dispute. The subsequent sale deed is a continuation of earlier sale deed, as is evident from its bare reading. It is only for the purpose of registration that the subsequent sale deed was scribed and registered. It also reiterate what was contained in the document dated 6/23rd August, 1993. The effect of registration is only to make the document admissible in evidence but so far as rights of parties are concerned, after registration, the same relate back to the date of execution of the document. In K. J. Nathan v. S. V. Maruthi Rao, AIR 1965 SC 430 the Court said that a registered document operates on the date of its execution not from the date of its registration.
47. Reading the two registered documents, I am inclined to take the view that registered document(s) shall take effect from 6th August, 1993 and that being so, it cannot be said that respondent no.1 was not the person entitled to receive rent of property in question or in other words, to whom the rent was not payable. Even if it is assumed that respondent did not become owner of entire property, for attracting Act, 1972, what is required is that, one should be a "landlord" and even if he is not the "owner" that would not made much difference. Ther term "landlord" has been defined in Section 3(j) of Act, 1972 and reads as under:
"Landlord", in relation to a building, means a person to whom its rent is or if the building were let, would be, payable and includes, except in Clause (g) the agent or attorney or such person."
48. It says that "landlord" is a person to whom the rent is payable. Once it is clear that respondent-landlord satisfied the definition of "landlord" under Section 3(j) of Act, 1972, it would become difficult to challenge his authority to determine tenancy of the petitioner.
49. In order to wriggle out of the above situation, Sri Kshitij Shailendra, Advocate sought to argue that as soon as agreement was executed between the erstwhile owners and the petitioner i.e. on 29.3.1992, the status of petitioner vis a vis erstwhile owners ceased to be that of landlord and tenant and that being so, Section 21(1)(b) or 20(2)(a) of Act, 1972 would have no application. In other words, his basic submission in this regard is that neither registration of agreement was necessary nor the fact that sale could not be executed subsequently will make any difference change for the reason that as soon as agreement was executed on 29.3.1992, status of petitioner vis a vis erstwhile owners of the property ceased to be that of tenant and landlord and that being so, applications under Section 21(1)(b) or 20(2)(a) of Act, 1972 were not maintainable even at the instance of respondent landlord. In this regard he placed reliance on Apex Court's decisions in R.Kanthimathi & Anr. Vs. Mrs. Beatrice Xavier 2002 (1) ARC 101, Imambi Vs. Azeeza Bee 2000 (41)116; Hamzabi & Ors. Vs. Syed Karimuddin & Ors. 2001(42) ALR 318; Maneklal Mansukhbhai Vs. Hormusji Jamshedji Ginwalla & Sons, AIR (37) 1950 SC 1; Dhanna Singh & Ors. Vs. Baljinder Kaur & Ors., 1997(3)) ALR 319; Shrimant Shamrao Suryavanshi & Anr. Vs. Prahlad Bhairoba Suryavanshi (D) by Lrs. & Ors., JT 2002(2) SC 24; Shadi Singh Vs. Rakha, 1992 SVLR Vol.1 (C)418; and this Court's decision in Ramesh Chandra Soni S/o Late Chhotey Lal Vs. Ramesh Chandra Soni S/o Late Devi Prasad, 2006(64) ALR 807; Kali Prasad Pandey & ors. Vs. 2nd Additional District Judge, Faizabad & ors., 2005 (61) ALR 671; Bishan Singh & ors. Vs. IIIrd Additional District Judge, Kanpur Nagar & Ors.,1993(2) ARC 187; D.S.Victor Vs. The District Judge, Bareilly & Ors., 1978 ARC 413; Sukha Vs. Vth Additional District Judge, Aligarh & Ors., 1989(1) ARC 349; and Bitola Devi (Smt.) and Ors. Vs. District Judge, Mirzapur & Anr., 2005(2) ARC 873 as also Full Bench of Karnataka High Court in Narasimbhasetty & Ors. Vs. Padmasetty, AIR 1998 Karnataka 389.
50. He also contended that once the building in dispute was allowed to be repaired and it was actually carried out, the building ceased to be in dilapidated condition, therefore, application under Section 21(1)(b) of Act, 1172 could not have been allowed. So far as eviction of the petitioner allowed under Section 20(2)(a) of Act, 1972 is concerned, he submitted that on 10.1.1994, the contesting respondent was not owner of the entire property having purchased only about one forth portion namely about 48 sq. yards, hence could not have sought eviction of petitioner from the entire building. The notice as well as suit both were untenable in law.
51. Per contra, Sri Ravi Kant, Senior Advocate contended that alleged agreement dated 29.3.1992 being an unregistered document would not confer any benefit, right, privilege, obligation, etc., upon the petitioner in view of U.P. Amendment in Sections 17 and 49 of Act, 1908 and 54 of Act, 1882, hence the very basis of argument does not exist. He also submitted that since Section 53A is not attracted in the case as all the ingredients thereof are not satisfied, no benefit, in any case, is admissible to the petitioner. The authorities cited by him would apply where Section 53A would have application and not otherwise.
52. I have considered the aforesaid submissions and finds that Sri Kshitij Shailendra's argument may have some substance only if the mere execution of agreement in the present case could have resulted in creating any kind of rights upon the petitioner. As already discussed above, Section 53-A of Act, 1882 is not attracted at all to the present case. In absence thereof, no rights vis a vis any semblance of right could have been claimed by the petitioner. The various authorities cited at the Bar by Sri Kshitij Shailendra lend no credence to him considering the fact that Section 53A of Act, 1882 is not attracted to help him.
53. In R.Kanthimathi & Anr. (supra), the matter relates to State of Tamilnadu having arisen from the proceedings under Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Therein no dispute had arisen whether the document was compulsorily registrable or not in order to confer any rights etc. upon the vendee. The judgment shows that execution of valid agreement was admitted between the parties and in this context the Apex Court in paras 6, 8 and 9 made the following observations:
"6. Any jural relationship between two persons could be created through agreement and similarly could be changed through agreement subject to the limitations under the law. Earlier when the appellants were inducted into tenancy it only means both agreed that their relationship was to be that of landlord and tenant. Later when the landlord decided to sell this property to the tenant and the tenant agreed by entering into agreement, they by their positive act changed their relationship as purchaser and seller. When the seller-landlord accepts the sum he actually acts under this agreement. This acceptance preceded by agreement of sale changes their relationship. This is how they intended. Once accepting such a change, their relationship of landlord-tenant ceases.
8. This decision clearly spells out that once there is agreement of sale between a landlord and a tenant, the old relationship as such comes to an end. It goes on to record that even after the cancellation of such agreement of sale the status of tenant is not restored as such. In other words, on the date of execution of the aforesaid agreement of sale their status as that of landlord and tenant changed into a new status as that of a purchaser and a seller.
9. ...Every conduct of the landlady right from the date of entering into agreement of sale, accepting money towards the sale consideration, delivering possession in lieu of such agreement all clearly indicates and has to be construed in law that she repudiated her old relationship of landlord and tenant. Thus after this parties enter into a new cloak of seller and purchaser and their relationship is to be governed under the said terms of the agreement. Every right and obligation thereafter would flow from it. Even if parties under the agreement of sale do not perform their obligation, remedy may be availed in law as permissible under in law."
54. In the State of U.P., however, situation is different, at least since 1977. An agreement for sale is compulsorily registrable else it shall not resulted in creating any rights between the vendor and vendee and therefore the aforesaid decision has no application to the case in hand.
55. Imambi (supra) again a decision having arisen from State of Tamil Nadu and there also execution of agreement and its binding effect was not in dispute. It is in these circumstances, the Court held that after execution of agreement of sale, status of tenant would cease to be that of tenant and would be changed to be that of purchaser. In the present case, since without registration of document i.e. contract for sale, no right can be claimed by parties being prohibited by statute, the aforesaid decision, in my view, would have no application to the present case.
56. In Hamzabi & Ors. (supra), the Court considered the consequences flowing from Section 53-A if it is so applicable, even if the contract is not registered in the context of a matter which has arisen out of an agreement dated 8.7.1953 hence would have no application to the present case in view of the fact that here in view of U.P. Amendments came into force in the two statutes of 1882 and 1908 in 1977, the legal and factual situation become totally different.
57. In Ramesh Chandra Soni (supra), again effect of a document being unregistered was not in issue and therefore this authority also would not help the petitioner.
58. Balmik Vs. Ramnaresh Singh (supra) is a case from State of Madhya Pradesh dealing with application of Section 53A. Since in the present case, this Court has already found that Section 53A is not attracted, the said decision also would lend no credence to the petitioner. Same is the position in respect to the decisions in Maneklal Mansukhbai (supra) which has arisen out of State of Mahanagar (Bombay). The other decisions are as such where the Court found application of Section 53A of Act, 1882 and in that context, further observations have been made which would have no application to the facts of this case. None of the judgments therefore cited at the bar on behalf of the petitioner on the above issue therefore held the petitioner.
59. Now coming to the last aspect that once some repair was allowed, the suit on the ground of dilapidated condition could not have been decreed. Suffice it to mention that mere some repair cannot ipso facto result in making the building safe. It depends on various facts and circumstances to determine whether the building is a dilapidated one or not. There is no otherwise material available on record that even after repair, as thought fit by the tenant, the building came to a condition where it could not have been said to be a dilapidated one. Both the Courts below in this regard have recorded findings of fact and there is nothing to show that the same is perverse.
60. What a dilapidated building would be depends on several facts. The term "dilapidated" does not mean that it is likely to collapse immediately or imminently or in other words it is on the verge of collapse. If such an argument is accepted besides wholly unwarranted, it would be a negation of the basis principle of safety and security of a person and his property. To my mind what is required to attract Section 21(1)(b) of Act, 1972 is that the building has outlived its life and utility and not that it has started falling. The mere fact that after complaint raised by landlord that building is in dilapidated condition, it has continued to survive for sufficiently long time thereafter is wholly irrelevant to decide the question, whether building is in a dilapidated condition or not.
61. It is no doubt true that onus to prove that a building is in dilapidated condition lie upon the landlord since it is he who is seeking a relief based on the aforesaid fact but it would not mean that the degree of onus can be extended to the extent of impossibility by asking him to prove something which is not necessary for the purpose.
62. The view I have expressed above is consistent with this Court's precedent in Shyam Lal Goel Vs. Vith Additional District Judge, Meerut and others, 1979 ALJ 1258; Ram Avtar Vs. VIIth Additional District Judge, Moradabad, 1982 ARC 124; Smt. Shanti Devi Vs. Ist Additional District Judge, Kanpur and others, 1983(1) ARC 21; Mahmood Yar Khan Vs. Irshad Ali Khan and others, 1985(1) ARC 298; Kishan Lal Gupta Vs. IXth Additional District Judge, Ghaziabad and others, 1998(34) ALR 612; Harish Chandra Gupta Vs. Swatantra Kumar Jain and others, 1999(2) ARC 22; and, Prince Agrawal (Dr.) Vs. Prasanna Madhav Vyas, 2009(2) ARC 412.
63. Rule 17(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Rules, 1972 (hereinafter referred to as the "Rules, 1972") contemplates that Prescribed Authority while considering an application on the ground of Section 21(1)(b) shall satisfy itself that the building requires demolition. Therefore, it is the satisfaction of Prescribed Authority regarding condition of building that it is dilapidated if he comes to the conclusion that it requires demolition. The satisfaction of Prescribed Authority, in my view, has been required under the Rules only to reassert the factum about condition of building, whether dilapidated or not and to avoid any mischief on the part of landlord to oust a tenant from a building which is though otherwise safe and in a good condition but to seek his ouster taking the plea of condition of building being dilapidated.
64. In the present case the Courts below have recorded their satisfaction about the condition of building being dilapidated one. In absence of anything to demonstrate the same perverse, no interference in exercise of power under Article 226 would be justified. The scope of judicial review in such matter is extremely limited. It is not to correct the errors in the orders of the court below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority.
65. This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes.
66. In D. N. Banerji Vs. P. R. Mukherjee, AIR 1953 SC 58 the Court said:
"Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under articles 226 and 227 of the Constitution to interfere."
67. A Constitution Bench of Apex Court examined the scope of Article 227 of the Constitution in Waryam Singh and another Vs. Amarnath and another AIR 1954 SC 215 and made following observations at p. 571 :
"This power of superintendence conferred by article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee AIR 1951 Cal. 193, to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors".
68. In Mohd. Yunus v. Mohd. Mustaqim and Ors. AIR 1984 SC 38 the Apex Court held that this Court has very limited scope under Article 227 of the Constitution and even the errors of law cannot be corrected in exercise of power of judicial review under Article 227 of the Constitution. The power can be used sparingly when it comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. The High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of the Tribunal, etc. has resulted in grave injustice.
69. For interference under Article 227, the finding of facts recorded by the Authority should be found to be perverse or patently erroneous and de hors the factual and legal position on record. (See: Nibaran Chandra Bag Vs. Mahendra Nath Ghughu, AIR 1963 SC 1895; Rukmanand Bairoliya Vs. the State of Bihar & ors., AIR 1971 SC 746; Gujarat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha & ors., AIR 1980 SC 1896; Laxmikant R. Bhojwani Vs. Pratapsing Mohansingh Singh Pardeshi, (1995) 6 SCC 576; Reliance Industries Ltd. Vs. Pravinbhai Jasbhai Patel & ors., (1997) 7 SCC 300; M/s. Pepsi Food Ltd. & Anr. Vs. Sub-Judicial Magistrate & ors., (1998) 5 SCC 749; and Virendra Kashinath Ravat & ors. Vs. Vinayak N. Joshi & ors. (1999) 1 SCC 47).
70. It is well settled that power under Article 227 is of the judicial superintendence which cannot be used to up-set conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could ever have reached them. (See: Rena Drego Vs. Lalchand Soni & ors., (1998) 3 SCC 341; Chandra Bhushan Vs. Beni Prasad & ors., (1999) 1 SCC 70; Savitrabai Bhausaheb Kevate & ors. Vs. Raichand Dhanraj Lunja, (1999) 2 SCC 171; and Savita Chemical (P) Ltd. Vs. Dyes & Chemical Workers' Union & Anr.,(1999) 2 SCC 143).
71. Power under Article 227 of the Constitution is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter the conclusion reached by the Competent Statutory Authority merely on the ground of insufficiency of evidence. (See: Union of India & ors. Vs. Himmat Singh Chahar, (1999) 4 SCC 521).
72. In Ajaib Singh Vs. Sirhind Co-opeative Marketing cum Processing Service Society Ltd., (1999) 6 SCC 82, the Hon'ble Apex Court has held that there is no justification for the High Court to substitute its view for the opinion of the Authorities/ Courts below as the same is not permissible in proceedings under Articles 226/227 of the Constitution.
73. In Mohan Amba Prasad Agnihotri Vs. Bhaskar Balwant Aheer, AIR 2000 SC 931, the Hon'ble Supreme Court held that jurisdiction of High Court under Article 227 of the Constitution is not appealable but supervisory. Therefore, it cannot interfere with the findings of fact recorded by Courts below unless there is no evidence to support findings or the findings are totally perverse.
74. In Indian Overseas Bank Vs. Indian Overseas Bank Staff Canteen Workers' Union (2000) 4 SCC 245, the Court observed that it is impermissible for the Writ Court to reappreciate evidence liberally and drawing conclusions on its own on pure questions of fact for the reason that it is not exercising appellate jurisdiction over the awards passed by Tribunal. The findings of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. The same cannot be disturbed for the mere reason of having based on materials or evidence not sufficient or credible in the opinion of Writ Court to warrant those findings. At any rate, as long as they are based upon some material which are relevant for the purpose no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court can not interfere.
75. In Union of India Vs. Rajendra Prabhu, (2001) 4 SCC 472, the Hon'ble Apex Court held that the High Court, in exercise of its extraordinary powers under Article 227 of the Constitution, cannot re-appreciate the evidence nor it can substitute its subjective opinion in place of the findings of Authorities below.
76. Similar view has been reiterated in State of Maharashtra Vs. Milind & ors., (2001) 1 SCC 4; Extrella Rubber Vs. Dass Estate (P) Ltd., (2001) 8 SCC 97; and Omeph Mathai & ors. Vs. M. Abdul Khader, (2002) 1 SCC 319.
77. In Surya Dev Rai Vs. Ram Chander Rai and others (2003) 6 SCC 675, it was held that in exercise of supervisory power under Article 227, High Court can correct errors of jurisdiction committed by subordinate Courts. It also held that when subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or jurisdiction though available is being exercised in a manner not permitted by law and failure of justice or grave injustice has occasioned, the Court may step in to exercise its supervisory jurisdiction. However, it also said that be it a writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or law unless error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law; or, a grave injustice or gross failure of justice has occasioned thereby.
78. In Jasbir Singh Vs. State of Punjab (2006 ) 8 SCC 294, the Court said:
"...while invoking the provisions of Article 227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the subordinate courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior courts in the discharge of their judicial functions."
79. In Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil (2010) 8 SCC 329, the Court said that power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court. The above authority has been cited and followed in Kokkanda B. Poondacha and others Vs. K.D. Ganapathi and another AIR 2011 SC 1353 and Bandaru Satyanarayana Vs. Imandi Anasuya (2011) 12 SCC 650.
80. In Abdul Razak (D) through Lrs. & others Vs. Mangesh Rajaram Wagle and others (2010) 2 SCC 432, Apex Court reminded that while exercising jurisdiction under Article 226 or 227, High Courts should not act as if they are exercising an appellate jurisdiction.
81. In T.G.N. Kumar Vs. State of Kerala and others (2011) 2 SCC 772, the Court said that power of superintendence conferred on the High Court under Article 227 of the Constitution of India is both administrative and judicial, but such power is to be exercised sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority.
82. In Commandant, 22nd Battalion, CRPF and others Vs. Surinder Kumar (2011) 10 SCC 244, Apex Court referring to its earlier decision in Union of India Vs. R.K. Sharma (2001) 9 SCC 592 observed that only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Articles 226 or 227.
83. Lastly though feebly it was contended that since the petitioner had never paid any rent to the respondent-landlord, there existed no relationship of landlord and tenant between them. Therefore S.C.C. Suit No.7 of 1995 filed by respondent-landlord under Section 20(2)(a) of Act, 1972 on the ground of default in payment of rent could not have been decreed and the otherwise decision of the Courts below, in this regard is, patently erroneous.
84. The discussion, made above, leaves no manner of doubt that the respondent-landlord had satisfied the definition of "landlord" under Section 3(j) of Act, 1972 and that being so, the rent being payable to him, but despite notice, not actually paid by the petitioner, which fact has not been disputed, and, that being so, I find no illegality or error on the part of Courts below in decreeing the suit on the ground under Section 20(2)(a) of Act, 1972. The counsel for the petitioner further submitted that he has subsequently paid an amount more than the defaulted amount, therefore the very cause of action has disappeared but I find no substance therein. The payment demanded by respondent-landlord towards rent and arrears thereof were neither paid after receipt of notice nor shown to have been paid before first date of hearing and therefore, no benefit in any manner can be extended to the petitioner.
85. The last submission that status of petitioner vis a vis respondent-landlord would be that of unauthorized occupant/trespasser and owner, therefore, remedy was available under Act, 1972 also cannot be accepted in view of this Court's findings, as discussed above.
86. In view of the above discussion, I do not find any merit either in the two writ petitions or the second appeal. Both the writ petitions and second appeal are hereby dismissed.
87. However, in the facts and circumstances of the case, there shall be no order as to costs.
Order date:01.10.2012 KA