Allahabad High Court
Hira Lal Agarwal vs Virendra Kumar And Ors. on 2 November, 2007
Equivalent citations: 2008(1)AWC419
Author: Sunil Ambwani
Bench: Sunil Ambwani
JUDGMENT Sunil Ambwani, J.
1. Heard Shri P.K. Singhal, learned Counsel for appellant and Shri Prakash Gupta for respondents. With the consent of the parties the second appeal nominated by order of Hon'ble the Chief Justice dated 14.9.2007 was finally heard.
2. The defendants-second appeal arises out of Original Suit No. 341 of 1984 for declaration, possession after ejectment of the defendants and Rs. 2,437 with interest w.e.f. 22.12.1975 and mesne profit @ Rs. 60 per month till the delivery of possession. It was alleged in the plaint that the deceased-defendant was the tenant of late Pandit Shiv Narain Sharma and was in possession of the premises. Shri Om Prakash Sharma-the son of Pandit Shiv Narain Sharma was looking after the property and was receiving the rent. By the three sale deeds the property was transferred to the plaintiffs. As soon as the sale deeds were registered, the defendant was informed with the sale and a letter was written on 17.11.1971 by late Pandit Shiv Narain Sharma to pay the rent to the plaintiffs. He did not pay the rent or the water tax w.e.f. 15.71972 on which a registered notice was given on 8.4.1975 raising a demand for arrears of rent and water tax and terminating the tenancy. The deceased-defendant, instead of paying the rent and vacating the premises, denied that he is tenant of the house and claimed himself to be owner and thereby denied plaintiffs title.
3. The defendant alleged that he is occupying the entire first floor as owner of property No. 4 (new numbers 1/17 and 1/17/1 and 5) situated at M.G. Road, Agra. He alleged that the sale deeds are void as the plaintiffs were aware of the agreement to sale dated 4.2.1964. There was no question of payment of rent as there was no relationship of landlord and tenant. The reply was given to the notice dated 8.4.1975 on 8.5.1975 in which it was clearly stated that by an agreement to sale dated 4.2.1964 the property was agreed to be sold by late Pandit Shiv Narain Sharma. The provisions of U. P. Act No. 13 of 1972 are not applicable and that the plaintiffs are not entitled to any relief. The Suit No. 172 of 1974 was filed in Judge, Small Causes Court, Agra which was not found to be within jurisdiction of the Court. In March, 1984 the defendants also took the plea of jurisdiction and limitation as well as Section 34 of the Specific Reliefs Act. In the additional pleas, it was alleged that the first floor of house No. 4, which is numbered as 1/17 x 2 to 1/17/5 M. G. Road, Agra was taken from its previous owner Shri S.N. Sharma in 1958. The defendant made it habitable after making repairs and agreed to take the premises on rent at Rs. 35 per month on February 4, 1964, Shri S.N. Sharma, required a sum of Rs. 15,000 which were agreed to be paid on the condition that the amount will bear interest of one per cent per month out of which Rs. 37 will be paid towards the rent, and the remaining Rs. 115 will accumulate upto Rs. 5,000 and whenever total amount of Rs. 20,000 will be accumulated the tenancy will come to an end, and the defendants will continue to occupy the portion in part performance of the contract and thereafter Shri S.N. Verma will execute the sale deeds. The defendants will have the right to make additional constructions and has made considerable expenses on repairs of the property. After about two or three months of the agreement Shri S.N. Sharma suffered an attack of paralysis. He was paid rent upto August, 1970 when he died leaving his wife and son Om Prakash. The defendant has been always ready and willing to perform his part of the contract and also made several times oral requests in writing and thereafter registered letters were sent to execute the sale deed without any effect. The plaintiff Harendra Kumar had knowledge of the agreement as he had singed the agreement.
4. The trial court dismissed the suit on 5.2.2007 with costs with the findings that the plaintiff had failed to prove that they are owners of the disputed property and that there was no relationship of landlord and tenant between the parties. The suit was not barred by limitation under Section 34 of the Specific Reliefs Act. The judgment and decree dated 5.2.2007 was challenged in Civil Appeal No. 24 of 2007.
5. The appellate court in its judgment dated 18.8.2007 has allowed the appeal ; rejected the cross-objections and while setting aside the judgment and decree dated 5.2.2007 decreed the suit for declaration and possession after ejecting defendants. It has also decreed the suit for Rs. 2,437.20 as arrears of rent and water tax and Rs. 35 per month as mesne profit till the date of possession is handed over.
6. The appellate court found that though the original power-of-attorney of late Pandit Shiv Narain Sharma was not brought on record, a number of other properties were also sold through same power-of-attorney in favour of Shri Om Prakash son of the executor late Pandit Shiv Narain Sharma. The other heirs have not challenged these sale deeds. The power-of-attorney was executed in 1965 and registered and thus the presumption can be raised of its validity and genuineness under Section 90 (1) of the Evidence Act, when the certified copy was produced. When a presumption of due execution and genuineness can be raised of original document, it can also be raised in respect of a certified copy of the document which is admissible in evidence.
7. The appellate court repelled the contention that the defendants will be entitled to protection of Section 53A of the Transfer of Properties Act. The agreement to sale was not in the knowledge of the plaintiff. The evidence to prove the agreement was not believed by the appellate court. The statements of D.W. 1 Hira Lal that he had informed the plaintiffs of an agreement which however was not shown to them was not taken to be sufficient knowledge of the agreement to sale of the property. The appellate court found that the plaintiff did not have knowledge of the agreement of sale and had purchased the property bonajidely for valuable consideration. The appellate court further found that the suit is not barred by Section 34 of the Specific Reliefs Act and the Limitation Act. The notice of purchase of property and notice terminating the tenancy was proved on record. The suit as such was liable to be decreed and consequently the decree against the defendants.
8. Shri P. K. Singhal, learned Counsel for appellant, submits that the second appeal raises substantial questions of law, namely that no presumption could be raised in respect of certified copy of the power-of-attorney as it was not a public document, and that unless the loss of original was proved as per Section 65 of the Evidence Act the certified copy was not admissible in evidence. The paper 37A/42C is, in any case not an agreement to sale. The plaintiff-respondent shall be deemed to have notice under Section 114 of the Evidence Act of the agreement of sale in favour of the defendant-appellant before the -purchase of the suit property, and that the suit was barred by Section 34 of the Specific Reliefs Act as no relief was claimed for cancellation of agreement to sale. The suit was also barred by time as it was filed after 12 years of purchase of the suit property in 1971.
9. Shri P. K. Singhal has relied upon judgment in Shrimant Shamrao Suryavanshi and Anr. v. Prahlad Bhairoba Sunjavanshi (dead) by L.Rs. and Ors. , in support of his submission that where a person obtains possession of the property in part performances of an agreement to sale, he can, under Section 53A of the Transfer of Property Act defend his possession in a suit for recovery of possession filed by the transferor or by subsequent transferee of the property claiming under him even if the suit is for specific performance of agreement to sale has become barred of limitation. He has also relied upon judgment in Ram Niwas (dead) through L.Rs. v. Smt. Bano and Ors. . in which the Supreme Court held that where no finding was recorded as to whether earlier agreement was forged, the Court should not have proceeded to hold that subsequent purchasers were bona fide purchaser for value without notice of the earlier agreement.
10. The first appellate court considered the evidence on the existence of the agreement of sale afresh and has recorded the findings that paper 42Ga alleged to be executed on 4.2.1964 is not an agreement to sale. It is the letter alleged to be written by late Shri Shiv Narain Sharma. which reads as follows:
My Dear Vakil Sahab Agra Dated 4.2.1964 I am highly obliged to you for paying me Rs. 15,000 (Fifteen thousand), as agreed you will charge interest at 1% p.m. and go on deducting the rent Rs. 35 p.m. of the upper storey of 4, M.G. Road, Agra in your occupation out of the interest every month, when the balance of interest and the aforesaid principal comes to Rs. 20,000 (Twenty Thousand), your occupation as tenant will cease and possession shall be deemed to have been delivered to you in part performance of the contract of sale in respect of the aforesaid premises. 1 will execute a formal sale deed, you are at liberty to carry out any additions or alterations for upper storey, as you required.
Yours sincerely, Sd.
(Shiv Narain Sharma).
11. The letter does not fulfil essential elements of contract. The letter is an acknowledgment of receipt of Rs. 15,000 to bear interest @ 1% per month and deduction of rent of Rs. 35 per month of the house in the occupation out of the interest every month. The letter further states that when the balance of interest and the aforesaid principal will come to Rs. 20,000 his occupation as tenant will cease and the possession will be delivered in part performance of the contract of the sale of the premises and that the formal sale deed will be executed. The tenant was given liberty to carry out addition or alterations for upper storey as he requires P.W. 2 Om Prakash denied signatures of his father on this letter and stated that the signatures are forged. This document is not addressed to the tenant by name and does not describe the property. The contents are wholly unnatural as there was no necessity to adjust the rent out of the interest and then execute the sale deed when the amount due will become Rs. 20,000. The tenant could have insisted on executing the sale deed at the time of payment of alleged advance. The appellate court further found that the letter was written to Wakil Sahab and not to Shri Hira Lal. The words 'Wakil Sahab' are general in nature and do not specify the person as per the letter was addressed.
12. The appellate court also held that in any case the tenant is not entitled to benefit of Section 53A of the Transfer of Property Act. The appellate court also held that the plaintiff did not have knowledge of the document. It requires title by sale deeds executed by Om Prakash holding power-of-attorney dated 14.2.1965 from Pandit Shiv Narain Sharma. The certified copy of the power-of-attorney was admissible in evidence under Section 90A of the Indian Evidence Act is applicable to U. P. vide U. P. Act No. XXVI of 1954, as it was more than 20 years and Sub-section (2) of Section 90 provides that where any document referred to in Sub-section (1) was registered in accordance with the law relating to registration of documents and duly certified copy thereof is produced. The Court may presume that the signature in every other part of such document which purports to be in the hand writing of any particular person, is in that persons hand writing and in the case of a document executed or attested, that it was duly executed by the persons by whom it purports to have been executed or attested. The certified copy of the power-of-attorney was produced from the custody of the son of the executor in whose favour it was executed and the document was more than 20 years as substituted in Section 90 (1) (a) of the U. P. Act XXVI of 1954.
13. The submission of learned Counsel for appellant, that the defendant-tenant cannot be dispossessed as he was in possession of the property in part performance of an agreement to sale, does not help inasmuch as the trial court rightly found that the document was not an agreement to sale as It was not addressed to the defendant. It was unilateral document and was not acted upon by the parties. There was no evidence of adjustment of rent and an offer or notice for purchase of property after alleged terms in the letter were specified. In Shrimant Shamrao Suryavanshi and another (supra) Supreme Court held in para 16 that to attract Section 53A of the Transfer of Property Act, it is necessary to prove that there must be a contract of transfer for consideration of any immovable property ; the contract must be in writing, signed by transferor, or by someone on his behalf ; the writing must be in such words from which the terms necessary to construe the transferor can be ascertained ; the transferee must in part performance of the contract take possession of the property or of any part thereof ; the transferee must have done some act in furtherance of the contract ; and the transferee must have performed or be willing to perform his part of the contract.
14. The defence, under Section 53A of the Transfer of Property Act to an action for possession by a transferee from the owner, may be taken by way of counter-claim. After proving the contract to transfer for consideration and possession in part performance of the said contract, the transferee should prove by cogent witness that he has performed and is willing to perform his part of the contract. Even if the defendant may not have brought any suit for specific performance of the agreement to sale within the period of limitation and may be said to defend his possession, he must plead in his written statement and establish by cogent evidence that he was willing to perform his part of the contract. In Sunkara Venkata Rao v. K. Venkata Rao (2005) 11 SCC 430B the Supreme Court disposed of the special appeal against the judgment of learned single Judge reversing the judgment of the courts below and holding that a simple suit for injunction without seeking specific performance of the agreement of sale was not maintainable. In Huvappa Irappa Ballari v. Basava and Anr. (2005) 12 SCC 164, the Supreme Court was not satisfied with the manner In which the judgment written by learned single Judge on remanding the matter for a decision afresh in accordance with the law after pointing out that the plea of limitation to prove a suit for specific performance is not applicable where the transferee in part performance is protecting his possession, under Section 53A of the Transfer of Property Act.
15. In the present case, the letter dated 4.2.1964 (paper 42Ga) purporting to be the agreement was not an agreement for sale as it did not fulfil the essential ingredient of a contract. Further it was not proved and was rightly disbelieved by the appellate court. In the circumstances the Court was not required to consider plea of Section 53A of the Transfer of Property Act. The discussion on Section 53A was only academic in nature.
16. The appellate court thereafter found that the notice, terminating the tenancy to be valid, the tenant was directed to pay arrears of rent and was also liable to be dispossessed as he had denied the plaintiffs title under Section 20F of U. P. Act No. XXX of 1972.
17. I have considered the submissions of Shri P.K. Singhal and do not find that this second appeal raises any substantial question of law. The agreement to sale was not proved and that certified copy of the power-of-attorney through which sale deeds were executed was found to be valid and genuine invoking the presumption under Section 90 (2) as applicable in U.P. The second appeal is dismissed.