Delhi District Court
Anil Kumar vs . Satish Kumar Mishra on 24 September, 2021
RCA No.138/19
Anil Kumar Vs. Satish Kumar Mishra
IN THE COURT OF MANISH SHARMA: ADDITIONAL
DISTRICT JUDGE01, TIS HAZARI COURTS (WEST),
DELHI
RCA No. 138/19
In the matter of :
Sh. Anil Kumar
E302, 3rd Floor,
Tagore Garden Extension
New Delhi110027 ... Appellant
Versus
Sh. Satish Kumar Mishra
E302, 3rd Floor,
Tagore Garden Extension,
Delhi110027 ... Respondents
Date of institution of appeal : 07.11.2019
Date on which order reserved : 24.09.2021
Date on which order pronounced : 24.09.2021
JUDGMENT
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RCA No.138/19 Anil Kumar Vs. Satish Kumar Mishra
1. This is the appeal filed by the appellant/ defendant impugning the orderdated 11.09.2019 passed by Ld. Senior Civil Judge, West, Tis Hazari Courts, Delhi. Parties are hereinafter referred to as per their representative ranks in the suit.
The Ld. Trial Court allowed plaintiff's application under order 12 rule 6 CPC and passed decree of possession in favour of the plaintiff and against the defendant whilst other issues pertaining to mesne profits, damages etc. remaining undecided. The Ld. Trial Court directed the defendant to handover vacant and peaceful possession of the property bearing no. E302, III Floor, Tagore Garden Extn., Delhi measuring 80 sq. yards (herein called the 'Suit Property') to plaintiff.
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Anil Kumar Vs. Satish Kumar Mishra The brief facts as set out in the plaint are as follows :
2. The plaintiff entered into Security Agreements/ Tenancy Agreements dated 16.10.2014 and 22.09.15. The defendant deposited Rs. 7 Lacs with the plaintiff in terms of the agreement. And, in return, the plaintiff handed over possession of the suit property to the defendant for 11 months commencing from 16.09.2015 till 15.08.2016.
Plaintiff, on 24.06.2016, returned Rs. 50,000/ to the defendant. Defendant requested for one more month to vacate the suit property after expiry of the lease period. However, he has failed to vacate the suit property, and occupying it illegally.
3. The plaintiff served him with the legal notice dated 14.06.2016 to vacate the suit property. Despite the legal notice and various verbal reminders, defendant has failed to vacate the suit property and has refused to accept the balance security amount of Rs. 6,50,000/. Defendant also threatened plaintiff's 3/12 RCA No.138/19 Anil Kumar Vs. Satish Kumar Mishra family members for which his wife filed a criminal complaint against him. He further issued legal notice dated 06.12.2016, but the defendant vaguely replied to the said notice. The defendant is an illegal occupant in the suit property and, thus, liable to pay mesne profit and damages to the plaintiff.
4. The defendant in the written statement admitted the execution of the said document. He submitted that the documents are deceptive due to their nomenclature. In fact, plaintiff has entered into an agreement to sell with him for the suit property. The Plaintiff represented that he is the owner of the suit property and expressed his willingness to sell it for Rs. 20 Lacs. The defendant accepted the offer and agreed to purchase the suit property for Rs. 20 Lacs.
Parties entered into agreement to sell on 16.10.2014 and 22.09.2015. The sale consideration was required to be paid in 3 installments. The defendant has paid two installments of Rs. 4/12 RCA No.138/19
Anil Kumar Vs. Satish Kumar Mishra 7.5 Lacs and Rs. 7 Lac to the plaintiff, and he is ready and willing to make balance payment of Rs. 5,50,000/ at the time of execution of the Sale Deed. Thus, the defendant is in lawful possession and not liable to vacate the suit property. The Ld. Trial Court Judge observed that, admittedly by both the parties, documents dated 16.10.2014 and 22.09.2015 were executed; that as per version of the defendant, the said documents were executed for sale and not for tenancy; that as per the agreementdated 16.10.14, the defendant paid Rs. 7,50,000/ to the plaintiff as refundable security; that they made an arrangement that the plaintiff would not pay any interest thereon and the defendant would also not pay any rent of the suit property; that plaintiff handedover possession of the suit property to the defendant for 11 months and, on completion of the tenancy period, the defendant was required to handover the possession back to the plaintiff. 5/12 RCA No.138/19
Anil Kumar Vs. Satish Kumar Mishra Plaintiff was also required to pay the security amount without interest to defendant after deducting dues, damages and bills; that there is another agreement dated 22.09.2015, which contains same terms and conditions, but the amount of security was shown as Rs. 7 lacs.
The Ld. Trial Court observed that the said agreements are not agreement to sell. Defendant's averment that the plaintiff has changed the nomenclature of the documents is without any basis; that in fact the suit property was rented out to the plaintiff on depositing the said security amount; that, the agreement to sell executed between the parties is against the tenor of the documents; that, the defense of the defendant is not tenable in terms of Sections 91 and 92 of the Indian Evidence Act, 1872, which exclude any evidence to prove of terms of any written contract, grant or other disposition of property except the document itself; that, any oral agreement 6/12 RCA No.138/19 Anil Kumar Vs. Satish Kumar Mishra or statement cannot be admitted for the purpose of contradicting, varying, adding to or subtracting its terms; that, once the execution of the documents are admitted, the defendant cannot plead anything to supplement meaning of the document or to suggest that the document was meant for some other purposes; that the defendant cannot take the plea that the documents dated 16.10.2014 and 22.09.2015 were in fact meant for the sale of the suit property; that even if it is to be assumed that the documents dated 16.10.2014 and 22.09.2015 are meant for agreement for sale of the suit property, the defendant cannot seek protection of his possession as the said agreement are not registered; that as per Section 53A of Transfer of Property Act read with Section 17(1A) of Registration Act, a person cannot protect his possession by taking the plea of part performance on the basis of an unregistered agreement to sell.
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Anil Kumar Vs. Satish Kumar Mishra DECISION:
I agree to the view taken by the Ld. Trial Court that the documents, in fact, are not agreement to sell. The tenancy period of 11 months was also clearly mentioned in the agreement. Further any evidence contrary of the terms of the documents is impermissible and excluded in terms of section 91 and 92 of the Indian evidence act.
Moreover, in view of Section 17(1A) of the registration Act, 1908, unless the document is registered it shall have no effect for the purpose of the Section 53A of TPA. Undisputedly, in the present matter, the said agreements are not been registered, the question of invocation of Section 53A of the Transfer of Property Act for retaining the possession of the property in part performance of the contract, would not arise. Further, a tenant cannot retain possession after expiry of the lease deed, even if he has entered into an agreement to sell in 8/12 RCA No.138/19 Anil Kumar Vs. Satish Kumar Mishra respect of the disputed property. The lease agreement entered between the parties and agreement to sell give rise two separate cause of actions. Admittedly, in the situation herein, the defendant has not filed any suit for specific performance. The lease deed of the suit property has already expired on 15.08.2018. Thus, the tenancy has now become month to month and the defendant has no right, title or interest in the suit property. He is liable to vacate the same. Reference is made to the judgement K . Mani vs. M.D. Jayavel & Ors., 2012 (1) RCR(Rent) 111 which held that "mere agreement of sale will not terminate landlord tenant relationship unless there is specification to that effect in agreement itself"
Thus, even if the defendant were to succeed in his suit for specific performance of agreement to sell, till the execution of a conveyance deed in pursuance to the decree, if any, in favour of the defendant, he has no ground in law to save his possession 9/12 RCA No.138/19 Anil Kumar Vs. Satish Kumar Mishra of the premises. The status of the defendant would continue to be as before i.e. of a tenant whose tenancy has been determined.
Once it is found to be the position in law, the defence of the agreement to sell is not a legal defence available to the petitioner in the suit for ejectment.
In Sunil Kapoor vs. Himmat Singh & Ors., 167 (2010) DLT 806 which held:
"11. A mere agreement to sell of immovable property does not create any right in the property save the right to enforce the said agreement. Thus, even if the plaintiffs are found to have agreed to sell the property, defendant would not get any right to occupy that property as an agreement purchaser. In Jiwan Das Vs. Narain Das AIR 1981 Delhi 291 Hon'ble Delhi High Court has held that in fact no rights enure to the agreement 10/12 RCA No.138/19 Anil Kumar Vs. Satish Kumar Mishra purchaser, not even after the passing of a decree for specific performance and till conveyance in accordance with law and in pursuance thereto is executed. Thus in law, the petitioner has no right to remain in occupation of the premises or retain possession of the premises merely because of the agreement to sell in his favour.
Shri Kasturi Lal Mehra vs. M/s. Narshi Pharmaceutical and Surgical Pvt. Ltd., CM(M) No.1070/2014 dated 17.2.2014 wherein it is held that where admittedly after the expiry of the lease period, no fresh lease having been executed between the parties, the tenancy has become month to month tenancy after notice of termination issued by the petitioner. In the present case too, the parties had landlord tenant relationship and the plaintiff terminated the tenancy by issuing legal notices. The tenancy therefore became month to month. Now there is no legal defence available with the defendant to 11/12 RCA No.138/19 Anil Kumar Vs. Satish Kumar Mishra protect his possession.
Thus, I find no merit in the appeal. It is hereby dismissed with no order as to cost. Decree sheet be prepared accordingly.
File be consigned to record room.
Trial court record be sent back alongwith copy of the order. Digitally signed
MANISH by MANISH
Announced in open court SHARMA
Dated: 24.09.2021
SHARMA Date: 2021.09.30
14:28:42 +0530
(Manish Sharma)
ADJ1, West/Tis Hazari Courts
Delhi
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