Paniram .....Tenant/ vs Additional District Judge And Others ... on 1 April, 2021

[Cites 41, Cited by 0]

Uttarakhand High Court

Paniram .....Tenant/ vs Additional District Judge And Others ... on 1 April, 2021

Equivalent citations: AIRONLINE 2021 UTR 104

The petitioner before this Court, in the present Writ Petition, is a tenant, wherein, he has put to challenge, the impugned judgments dated 4th September, 2016, which has been rendered in SCC Revision No. 21 of 1996, Paniram Vs. Smt. Bhagwati Devi, and as a consequence thereto, it has resulted into an affirmation of judgment and decree dated 16th April, 1996, which has been rendered by the Judge, Small Causes Courts in SCC Suit No. 15 of 1989, Smt. Bhagwati Devi Vs. Paniram.

2. The brief facts, which engages consideration in the present Writ Petition, are that the respondent/landlord had filed a SCC Suit on 28th July, 1989, for the purposes of seeking an eviction of the petitioner/tenant from the tenement, in question, which was more appropriately described at the foot of the plaint, as to be; "iwoZ esa jkLrk tks mRrj nf{k.k gS vkSj okn esa ekxZ esa feyrk gS mlds okn ukyk tks mRrj nf{k.k cgrk gS] if"pe taxykr dh tehu lqudksV vkSj mlls igys Jherh t"kksnk nsoh dk edku] mRrj lqYrku dk edku nf{k.k oknuh dk vkxu o mlds okn mldk edku", constituting to be a residential accommodation of two rooms, over which, the tenancy was created by the erstwhile landlord, late Mr. Kali Ram, who had divested the property to the respondent/landlord, by will, executed in her favour on 17.11.1974.

3. The contention in the plaint, as raised by the landlord, was to the effect that the tenancy with the petitioner commenced from 1973, and as the petitioner/tenant since has committed a default in the remittance of the rent ever since 1982, which the landlord had contended and claimed to be payable @ 25/- p.m., hence, by virtue of a registered notice issued on 16.06.1989, under Section 106 of the Transfer of Property Act, the respondent No.3, the landlord has terminated the tenancy, and since the default was alleged to have been committed for the sufficient long period, the rent, which was claimed to be payable by virtue of the notice of 16.06.1989, was for a period of three years; preceding the date of notice i.e. dated 16.06.1989, which was admittedly, as per the records was served upon the petitioner on 21st June, 1989.

4. On institution of the Suit, in question, on 28.07.1989, the petitioner had put in appearance and filed his written statement by way of paper No. 18-Ga on 4th November, 1989, which was later on also amended by him at a much belated stage on 8th June, 1996, i.e. almost after seven years of proceedings, attempting to deny the valid initiation of the proceedings of the SCC Suit, as instituted on 28th July, 1989, on the pretext that the proceedings of the SCC Suit No.15 of 1989, Smt. Bhagwati Devi Vs. Paniram, would not be sustainable on the ground that the petitioner in the written statement had contended that since there was an agreement for sale, which was executed by the predecessor of the plaintiff, i.e. late Mr. Kali Ram, agreeing to sell the property on 3rd January, 1974, and subsequently, it was claimed by the petitioner, that the said agreement for sale also stood ratified by the voluntary act of the predecessors of the landlord, i.e. late Mr. Kali Ram, by accepting the partial sale consideration on 6th December, 1974, it was on the basis of these unregistered agreements for sale, the petitioner's contention was that he enjoyed the title and ownership over the property, in question, and hence, the petitioner in the written statement has contended, that the proceedings was not sustainable, as 3 there was no relationship of landlord and tenant, rather petitioner claimed to be the owner himself based on the agreement for sale, as referred above.

5. One fact, which is quite apparent from the record and which is not disputed too, also that the aforesaid two agreements for sale, on which, the reliance had been placed by the learned counsel for the petitioner, were not the registered agreements for sale, and in order to meet up the said argument, the learned counsel for the petitioner has submitted that the registration of the aforesaid agreement for sale, was not mandatory for the reasons being that the mandate of compulsory registration was incorporated by Section 17 under the Registration Act, which was brought into effect, for the first time by Civil Law Amendment Act, 1976, w.e.f. 01.01.1977, by virtue of Section 32 of the Amending Act, where the deeds which were falling under the ambit of Section 17, were made mandatorily required to be registered and, hence, he submits that merely on the ground and pretext that the aforesaid agreements dated 3rd January, 1974 and 6th December, 1974, though admittedly, they were unregistered, that may not be interpreted as if, it was not conferring a valid title in favour of the petitioner/tenant.

6. He further submits that in view of the fact that at the time when the agreement for sale was executed, though unregistered, but still the same could not have been discarded to be considered by the learned Trial Court, for the purposes of determination of his title over the property, in question, in order to substantiate his pleas, which were taken in the written statement, that the Suit itself was barred, in the absence of existence and subsistence of relationship of landlord and tenant.

7. He further submitted that the findings which were recorded by the learned Trial Court in relation to the implications of Section 54 of the Transfer of Property Act, as to in what manner an 4 unregistered agreement for sale, even if it had been executed prior to the amendment, which has been made by the Amending Act of 1976, w.e.f. 01.01.1977, it ought to be interpreted for the purposes of conferring the valid title. The specific and direct answer to it, to the petitioner's counsel would be Section 54 of the Transfer of Property Act, itself, which provides that a mere execution of an agreement for sale "its status of being registered or unregistered would be irrelevant", for the purposes of determining, the fact, that whether the title has been conveyed to the tenant by an agreement for sale and, in particular, when there is nothing on record, which was placed by him, to substantiate, at the behest of the petitioner to show that under the strength of the alleged unregistered agreements for sale of 3rd January, 1974 and 6th December, 1974, ever the petitioner had filed or even attempted to have filed, any Suit for specific performance, for the purposes of execution of the sale deed, and that is why, being conscious of the aforesaid legal embargo of not having instituted any Suit for the grant of a decree of specific performance, under the strength of unregistered agreement for sale of 3rd January, 1974, and 6th December, 1974, the petitioner had taken an alternative plea in support of his case, of having matured his rights over the tenement, in question, by virtue of an adverse possession after 1974.

8. During the course of argument of the Writ Petition, the argument which has been extended by the learned counsel for the petitioner, was that the learned Trial Court had erred at law, in not formulating a proper issue or point of determination, in relation to attracting the plea of Section 23 of the Provincial Small Causes Courts Act, and also by not formulating the question in relation to the claim, which was raised by the petitioner/tenant, on the basis of claim of right by an adverse possession.

9. These two limb of arguments of the learned counsel for the petitioner, is not acceptable by this Court for the reason being that, if the provisions contained under Order 50 of the CPC; is taken into 5 consideration, which is referred to hereunder, there are certain exceptions to the applicability of the provision of the CPC, as has been made applicable over the proceedings, before the Judge Small Causes Courts, who is ceased with the JSCC Suit, under Section 15 of the Provincial Small Causes Courts Act and for the purposes of brevity, the provision contained under Order 50 of CPC is referred to hereunder :-

"ORDER - L. PROVINCIAL SMALL CAUSE COURTS Provincial Small Cause Courts - The provisions hereinafter specified shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 (9 of 1887) [or under the Berar Small Cause Courts Law, 1905] or to Courts exercising the jurisdiction of a Court of Small Causes [under the said Act or Law], or to Courts [in any part of India to which the said Act does not extend] exercising a corresponding jurisdiction that is to say-

(a) so much of this Schedule as relates to-

(i) suits excepted from the cognizance of a Court of Small Causes or the execution of decrees in such suits;

(ii) the execution of decrees against immovable property or the interest of a partner in partnership property;

(iii) the settlement of issues; and

(b) the following rules and Orders:-

Order II, rule 1 (frame of suit);

Order X, rule 3 (record of examination of parties); Order XV, except so much of rule 4 as provides for the pronouncement at once of judgment;

Order XVIII, rules 5 to 12 (evidence);

Orders XLI to XLV (appeals);

Order XLVII, rules 2, 3,5,6,7 (review);

STATE AMENDMENT Allahabad.-In Order L, in rule 1, in clause (b), after the words "Order XV, except so much of rule 4 as provides for the pronouncement at once of judgment", insert the words "and rule 5".

[Vide President Act 19 of 1973 as re-enacted by Uttar Pradesh Act 30 of 1974.]"

10. In the light of the provisions contained under Order 50 of the CPC, the argument which has been extended by the learned counsel for the petitioner, that the impugned judgment, which has been rendered by the Judge Small Causes Courts, in Suit No. 15 of 6 1989, Smt. Bhagwati Devi Vs. Paniram, was faulted, because of non formulation of an appropriate issue (point of determination); (a) pertaining to implications of Section 23 of the Provincial Small Causes Courts Act, (b) pertaining, to non framing of the question on a claim raised by the petitioner on the basis of adverse possession.

11. I am of the view that under the Civil Procedural Law, even in those proceedings which are held before the JSCC Court, for e.g. like the proceedings under Section 15, as in the present case, where the formulation of a specific issue may not be with same intensity, as it has been provided under Order 14 of the CPC, may not be a condition precedent, but simultaneously, when the Small Causes Courts, formulates a point of determination, which is to be answered by the Court for deciding a matter, it is always based upon the pleadings raised by the parties, it is mandatory and rather expected too also, from the parties which are likely to be affected by non framing of a proper point of determination, to have raised the specific plea, attracting the attention of the Court by requesting the Small Causes Courts, to frame an appropriate issue or a point of determination, as expected to be famed by the parties, who wants the Court to answer the said question in his favour. Having not availed the said opportunity, the petitioner cannot now belatedly at writ stage, be permitted to take the advantage of its own lack of diligence in vigilantly participating in the proceedings.

12. There is nothing on record to show that though the plea of Section 23, the plea of adverse possession, were the plea which were raised, but in an eventuality, even if it is presumed, that the Court has not framed any point of determination, as was expected by the petitioner on its basis, at this ripe stage of the proceedings of the Writ Petition, the petitioner cannot be permitted to take the benefit of his own slackness or non diligence, of not getting an appropriate point of determination framed, before the Court below for the purposes of soliciting an answer to Section 23; and the answer to the question of 7 adverse possession; which was claimed by the petitioner exclusively, on the basis of an unregistered agreement for sale, which admittedly, continued during the proceedings, to enjoy the status of being unregistered agreement for sale only, admittedly without there being any deed of conveyance, having being ever executed or attempted to be got to be executed by the petitioner by filing any Suit for specific performance. Hence, inaction on the part of the petitioner to get an appropriate point of determination framed cannot grant the petitioner a liberty to argue that the Court had erred at law while deciding the SCC Suit, by non formulation of an appropriate issue as referred hereinabove.

13. The persistent argument which has been extended by the learned counsel for the petitioner, that the judgments impugned, which are under challenge in the present Writ Petition are not sustainable, because his plea of defence taken under the light of the provisions contained under Section 23 of the Provincial Small Causes Courts Act, was not taken into consideration, which was raised by the petitioner under the garb of the alleged unregistered agreement for sale of 1974, is not sustainable for the reasons being that, when the learned Trial Court was proceeding with the matter by a specific order of 2nd December, 1989, where the defendant/petitioners' plea about the impact of Section 23, was taken into consideration, the Court of Addl. Civil Judge, exercising the powers of the Judge Small Causes Courts under Section 15 of the Act, vide its order of 2nd December, 1989, had dealt with the said aspect and impact of Section 23, and had already turned down the plea raised by the petitioner.

14. There is nothing on record brought by the petitioner, to substantiate that the said issue which was decided by the learned Judge Small Causes Court, on 2nd December, 1989, was ever disturbed by any superior court or put to challenge by the petitioner independently in any JSCC Revision, under Section 25 of the Provincial Small Causes Court Act. Hence, as such, the persistent 8 plea of non-formulation of an issue under Section 23, it would not be open any more to be argued by the petitioner now to argue the said matter, when a specific finding has been recorded by the learned Trial Court, while deciding the said aspect, which is referred to hereunder :-

**eSaus bu nksuksa uthjksa dks Hkyh izdkj i<+k rFkk ekStwnk okn ds vfHkopuksa rFkk nkf[ky olh;rukes o bdjkjukes dk voyksdu fd;kA bu nksuksa gh fof/k fl)kUrksa esa ekuuh; mPp U;k;ky; us ;g ekuk gS fd fdjk;snkj n~okjk ek= HkwLokeh ds LokfeRo ls bUdkj dj Lo;a dks HkwLokeh dguk gh /kkjk 23 Leky dktst dksVZ ds fy, i;kZIr ugha gS vkSj tc rd fd dksbZ mfpr vk/kkj fdjk;snkj ds HkwLokeh gksus dk u gks rc rd U;k;ky; tt [kQhQk muds chp HkwLokeh o fdjk;snkj dk lEcU/k r; djus esa rFkk fookfnr lEifRr ds LokfeRo ds lEcU/k esa fu.kZ; nsus ds fy, l{ke gSA ekStwnk okn esa izfroknh }kjk ;g vk/kkj rks fy;k x;k gS fd mlus dkyh jke ls fookfnr lEifRr bdjkj ds n~okjk [kjhnh ysfdu oS/kkfud :i ls fuLikfnr dksbZ fodz;&i= mldh vksj ls nkf[ky ugha gqvkA fon~oku vf/koDrk izfroknh n~okjk 1989 ¼15½ ,0,y0vkj0 ist 246 czge flag cuke prqFkZ vij ftyk tt esjB dk lanHkZ ysdj ;g rdZ izLrqr fd;k fd ftl okn esa QjhdSu ds LokfeRo dk iz'u vUrjxzLr gks] mu oknksa dks fuLrkfjr djus ds fy, U;k;ky; tt [kQhQk l{ke ugh gS cfYd /kkjk 23 izksfofUl;y Leky dktst ,DV ds vUrxZr mldk okn l{ke U;k;ky; esa ;ksftr djus ds fy, okil fd;k tk;A bl fof/k fl)kUr ls lEcfU/kr okn ds rF; ekStwnk okn ds rF;ksa ls dkQh feyrs gSa D;ksafd bl lEcfU/kr okn esa Hkh izfroknh us Lo;a dks bdjkjukes ds vk/kkj ij vius dks HkwLokeh crkdj vly HkwLokeh ds LokfeRo dks pqukSrh nh FkhA ekuuh; mPp U;k;ky; us bl fof/k fl)kUr esa bdjkjukesa ds vk/kkj ij izfroknh dks Lokeh u ekudj ;gha O;oLFkk nh fd ,sls oknksa esa U;k;ky; tt [kQhQk Qjhdsu ds LokfeRo ds fookn ds lEcU/k esa fu.kZ; nsus ds fy, l{ke gSA mDr fo'ys'k.k ds vk/kkj ij esa bl fu'd'kZ ij igqaprk gwa fd izLrqr okn /kkjk 23 izksfoUl;y Leky dktst dksVZ ,DV ds izkfo/kkuksa dks fdlh izdkj okafNr izrhr ugha gksrk gS vkSj okn dh ekStwnk ifjfLFkfr;ksa esa Qjhdsu HkwLokeh o fdjk;snkj ds lEcU/k esa fu.kZ; nsus esa ;g U;k;ky;

l{ke gSA**

15. This Court is of the view that the petitioner cannot be permitted to take benefit of his own procedural dereliction, in not attracting the attention or calling upon the Trial Court, for formulation of the appropriate issues, which according to his argument and expectation, was required to be considered by the Trial Court, at the threshold itself, and particularly, when it entailed the consideration of facts, and an appreciation of evidence too, to come to a logical 9 conclusion, and now he cannot be permitted to raise the said plea, at this belated stage, of the writ petition.

16. The gravamen of argument, of the learned counsel for the petitioner, in the light of the alleged agreement for sale, contending that it was a conferment of a title upon him, and the proceedings would be hit by Section 54 of the Transfer of Property Act, it needs no specific reference, that mere execution of an agreement for sale without there being any specific deed of conveyance, having being ever executed under the strength of it, no benefit as such could be derived by the petitioner and, particularly, in relation to an immovable property and that too for deriving a benefit of title exclusively on the basis of agreement for sale of 1974, particularly when it was never proved, that ever any deed of conveyance was executed based on it. This alleged agreement for sale, has lost its significance with the afflux of time, under the law of limitation.

17. The learned counsel for the petitioner submitted that in view of the fact as asserted by him in his pleadings before the Court below, that as a consequence of the agreement for sale dated 30th January, 1974, and 6th December, 1974, the possession of the property, in question, was transferred and, hence he would be entitled for the protection of Section 53-A of the Transfer of Property Act, would yet again not be an argument, which is available to the petitioner, for the reasons being that the terminology used therein, in its specific terms the legislature uses the word "contract of transfers", I am of the view that the contract of proposed transfers, would also include within its ambit the consequential deed of conveyance of right and title too, where the right is finally conveyed in relation to an immovable property, by a title holder of the same, and in the absence of there being any right being continued or transferred on the basis of an agreement for sale, the impact of Section 53-A of the Transfer of Property Act, cannot be drawn to his advantage in its perpetuity, as it if would persist for a period to 10 infinity, there has had to be a reasonable time for ensuring the execution of deed of transfer of rights in relation to an immovable property.

18. Based on the aforesaid, the learned counsel for the respondent No.3, in the pleadings before the Court below have contended that after the death of the predecessor owner, late Mr. Kali Ram, the will, which was executed by him, in her favour on 18th November, 1974, the right over the tenement stood devolved in favour of the respondent No.3, after the death of Mr. Kali Ram, which had chanced in 1976.

19. It has further come on record, which remained unrebutted too, that under the strength of the said will dated 18.11.1974, the respondent No.3, after the death of Kali Ram, had filed a Mutation Application; before the competent authority under the Municipality Act, and that was allowed and on the basis of the same, the mutation of the respondent No.3, has been carried in the record of rights, on the basis of the will, which was contended by the petitioner to be sub- judice in a Mutation Appeal No. 1 of 1989, which has been filed by him, before the Court of Chief Judicial Magistrate, Nainital. But, however, this plea of deriving its benefit from the agreement for sale or from the mutation, or from the subject matter of the Suit property, in fact, if it is dealt with in its intricacies, the description of the property, which was allegedly covered by the Will and that of the agreement for sale, which has been recorded by the Trial Court; as to be entirely distinct from one another and, hence, too no capital benefit either by way of implications of Section 54 or 53-A of the Transfer of Property Act, could be derived by the petitioner, in order to enable him to continue his occupancy of the premises, in question, under the pretext of non substantiated plea, of non existence of the relationship of landlord and tenant and contending to claim his title over the property, in question, based merely on an agreement for sale that too of 1974.

20. The aforesaid observation of this Court, further finds support from the stand, which were taken by the petitioner himself, to the effect that once in the proceedings, an alternative claim has been raised by the petitioner raising a claim, by way of adverse possession which is being claimed, in that eventuality, that itself dilutes his stand taken pertaining to the effect of claim of title by virtue of an agreement for sale, as well as the effect of part performance of the agreement under Section 53-A of the Transfer of Property Act, because the logic and the concept of a claim by adverse possession entails consideration of an aspect of an hostility of the possession, qua the principle owner, which is not the case engaged herein, which was ever built up by the petitioner in the pleadings itself, nor it was ever attempted to be substantiated by the petitioner, before the learned Trial Court by addressing himself on the said issue, after a request being made for its formulation. Accordingly, the learned Trial Court by the judgment of 25th July, 1991, based on the aforesaid pleadings, had decreed the Suit.

21. As against the judgment/decree of 25th July, 1991, the petitioner had preferred a Revision. The Revision, thus preferred under Section 25 of the Provincial Small Causes Courts Act, was allowed by the judgment of 19th August, 1995, and the matter was remanded back, to the Judge Small Causes Court for its fresh consideration.

22. It was after the remand, when the proceedings before the JSCC, Court below revived back, and an application, being paper No. 121 Ga/1, was filed on 24th November, 1995, for the purposes of conducting a commission through an Advocate, aiming at for the purposes of better identification of the property and in relation thereto, a report was also submitted on record by the Advocate Commission, which was objected by the petitioner by filing an objection to it; on 20th December, 2019. The learned Court below, after considering the 12 objection, which was filed by the petitioner to the Advocate Commissioner's report dated 24th November, 1995, the learned Judge Small Causes Courts, had rejected the objection of the petitioner, by an order dated 7th February, 1996, and had confirmed the Advocate Commissioner's report dated 24.11.1995, on the basis of its exact determination of the property, which was the subject matter of the agreement for sale and subsequently, the subject matter of the Suit itself, and hence, the stalemate, which prevailed pertaining to the fact, as to whether the property, in question, forms to be the property, which was the subject matter of the Suit and the property, which was subject matter of the agreement for sale, was laid to rest with the affirmation of the commission report by an order dated 7th February, 1996, which remained un-assailed by the petitioner thereafter, the order dated 07.02.1996, affirming the Commissioner's report.

23. Ultimately, on remand, the Suit was once again decreed, by Jude Small Causes Courts, by the judgment of 16th April, 1996, which is one of the impugned judgments, which is under challenge in the present Writ Petition.

24. Being aggrieved against the said judgment of the Trial Court dated 16.04.1996, the petitioner had preferred a SCC Revision No. 21 of 1996, Paniram Vs. Smt. Bhagwati Devi. The same was also dismissed on 04.09.1996. Consequently, the present Writ Petition, being aggrieved against the two judgments, was preferred before High Court of Judicature at Allahabad, on 16.09.1996, which was later transferred to this Court under Section 35 of the Re-organization Act.

25. As I have already observed above, that as far as my view is concerned, the petitioner has got no legs to stand, for the reason being, that the petitioner cannot and that too under the strength of an unregistered agreement for sale; can be permitted to claim a title over the property, in question, to enable him to take a defence in a judicial proceedings to deny the relationship of the landlord and the tenant, 13 particularly, in the absence of there being any deed of conveyance, being ever executed in his favour or even attempted to be got executed by him by filing any specific Suit in relation thereto for Specific Performance, ever since the execution of agreement for sale in 1974, as alleged by the petitioner.

26. Further, the evidence on record, has further established the fact that after the death of Mr. Kali Ram, under the strength of the Will dated 18th November, 1974, the respondent No.3, stood recorded in the municipal record and the title of the disputed tenement stood vested with her and mere pendency of a Mutation Appeal will still, yet again not divest a title over the property, in question, on the petitioner that too particularly, when the said Mutation Appeal of the petitioner, too later on stood rejected. These orders on mutation proceedings had attained finality, as it remained unchallenged by the petitioner.

27. I am further of the view that in view of the provisions contained under Section 54 of the Transfer of Property Act, which defines the "sale", its an actual transfer of ownership and all rights to any property, on an exchange of price paid or promised to be paid by execution of a document of conveyance, the rights and title over the property, in question, which is tangible in relation to an immovable property, had been actually transferred and since herein, no such deed of sale was ever executed in the light of the provisions contained under Section 54 of the Transfer of Property Act, no benefit of title can be extracted to be derived by the petitioner; on a simplicitor, under the agreement for sale. Section 54 of the Transfer of Property Act 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 immoveable 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.

In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.

Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.

Contract for sale.--A contract for the sale of immoveable 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."

28. If the stand, which has been taken by the respondents in the proceedings before the Court below is considered, in the light of paper No. 20-C/1-33, i.e. the unregistered agreement for sale of 3rd January, 1974, which has been heavily relied by the learned counsel for the petitioner and if the property as described therein, which was the subject matter therein, it happens to be distinct to the property, which was the subject matter of proceedings of SCC suit, and hence, the tenacity of argument of the learned counsel for the petitioner that there did not exist a relationship of landlord and tenant, would not otherwise be established and acceptable by this Court too, as there being a vast distinction in the description of the property, which was allegedly agreed to be sold by the respondents, than the property, which was described in the SCC plaint.

29. The aforesaid contention of there being a distinction of property, also finds support from the Advocate Commissioner's report, which was placed on record i.e. dated 24th November, 1997. It has been argued by the learned counsel for the respondents, and particularly, a stand which has been taken by her in the counter affidavit also, that in relation to Mutation Appeal No. 1 of 1989, as preferred by the petitioner, based on the alleged agreement for sale of 3rd January, 1974, their Appeal has already been dismissed, and the respondent has been held to be rightly recorded owner, which has attained finality.

30. What is more surprising is that the defence, which has been taken by the petitioner, in the Writ proceedings under the pretext of there being an agreement for sale on the basis of which, he claims title, there was no such plea which was ever raised by the petitioner in the proceedings before the Courts below or in the reply to the notice, which was submitted by the petitioner, as given by the respondent/landlord on 16.06.1989 terminating the tenancy. That in itself creates a doubt about the sanctity of the agreement for sale, particularly that if at all, it was a foundation of defence, then atleast a reference of the same was expected to be made by the learned counsel for the petitioner at the first available opportunity when he filed the reply submitted to the notice on 21st June, 1986.

31. In support of his contention, the learned counsel for the petitioner had made reference and relied on the judgment reported in 2002 (3) SCC 676, Shrimant Shamrao Suryavanshi and another Vs. Pralhad Bhairoba Suryavanshi (Dead) by Lrs. and others, in order to attract the principles contained under Section 53-A of the Transfer of Property Act. If the factual backdrop of the said case is taken into consideration, the effect of part performance of an agreement for sale may be, even it is attracted in relation to an unregistered agreement for sale, it will not itself exclusively confer a right or title, until and unless the enforcement of a right, which is based, on a deed of conveyance, even as per law which was in vogue prior to the amendment of 1977, is being enforced by the procedure contemplated under the Law. In the absence of there being any efforts made by the petitioner to get the sale deed executed, inspite of overriding the effect of Section 32 of the U.P. Civil Law Amendment Act, 1976, no right of title would flow to him under the agreement for sale of 3rd January, 1974, in order to attract the principles of Section 53-A of Transfer of Property Act, in view of Section 54 of the Transfer of Property Act.

32. The learned counsel for the petitioner has made a reference to yet an another judgment, reported in AIR 2004 SC 3584, Mahadeva and others Vs. Tanabai, and particularly, he has drawn the attention of this Court to the contents of para 8 of the said judgment, which is extracted hereunder :-

"8. The judgment of the High Court is based on a question framed during the course of writing of the judgment which is in departure from the two questions of law on which the appeal was admitted for hearing. The whole emphasis shifted from the core issues. Then, the High Court has not discussed any law and has also not assigned reason, much less a satisfactory one, for taking a view different from the one concurrently taken by the two courts below. The singular reason assigned by the High Court for denying the benefit of Section 53-A of the TP Act is not a sound reason by itself in view of the decision of this Court in Shrimant Shamrao Suryavanshi and Anr. Vs. Pralhad Bhairoba Suryavanshi (Dead) by Lrs. and Ors. (2002) 3 SCC 676. This Court has held that merely because the suit for specific performance at the instance of the vendee has become barred by limitation that by itself is not enough to deny the benefit of the plea of part performance of agreement of sale to the person in possession."

33. The principles dealt with there with regard to the effect of Section 53-A of the Transfer of Property Act, cannot be read in isolation to the issue, which was being considered there by the Hon'ble Apex Court, in the said case, where the defendants to the proceedings of a regular Civil Suit, which was preferred under Section 9 of the C.P.C., were claiming an acquisition of title over the disputed property by adverse possession, which has been negated by the Courts below and the plea of Section 53-A of Transfer of Property Act, was not accepted there.

34. The same principle, as it has been laid in para 8 of the said judgment, though based on altogether different facts and circumstances, would not be applicable herein, because the enforcement of the concept and an effect of part performance of agreement for sale, though it might have been based on an unregistered agreement, but still it cannot be a recourse, which could 17 be left open to the petitioner to take a rescue to the proceedings under Section 15 of the Provincial Small Causes Courts Act, governing and based on exclusive inter se relation of landlord and tenant, and where particularly Section 23, was not an issue which had been agitated by the petitioner before both the Courts below, and also because of the un-assailed order dated 02/12/1989 (referred in para 14 of this judgment), where the issue of Section 23, was laid to rest.

35. The counsel for the petitioner, had further made a reference to para 15 of the judgment, in the case of Shrimant Shamrao Suryavanshi (supra). He had referred to the contents of para 15 of the said judgment, which is extracted hereunder :-

"15. The Special Committee's report which is reflected in the aims and objects of amending Act 1929 shows that one of the purposes of enacting Section 53-A was to provide protection to a transferee who in part performance of the contract had taken possession of the property even if the limitation to bring a suit for specific performance has expired. In that view of the matter, Section 53-A is required to be interpreted in the light of the recommendation of Special Committee's report and aims, objects contained in amending Act 1929 of the Act and specially when Section 53-A itself does not put any restriction to plea taken in defence by a transferee to protect his possession under Section 53-A even if the period of limitation to bring a suit for specific performance has expired."

36. If the backdrop of the said case is taken into consideration, there in the said case, it was a Suit, which had ultimately resulted into a culmination of the proceedings by way of a regular Appeal, where the question for considerations was, whether a Suit for specific performance of agreement for sale is barred by limitation? Whether a Suit could be brought by the transferor for recovery of possession of the property ? Which has been agreed to be sold, and whether can he defend the possession in the absence of there being any specific performance ? The reference made therein has had 18 to be read with the findings, which had been recorded in para 13 of the said judgment, which is quoted hereunder :-

"13. When the Transfer of Property Act was enacted, Section 53-A did not find place in it. In the absence of Section 53-A, there arose difference of opinion between various courts in India as regards the application of English doctrine of part performance of contract as it was then prevailing in England. Since there was a difference of opinion on question of the application of English equitable doctrine of part performance in various courts of India, the Govt. of India resolved to set up a Special Committee for making recommendations amongst others whether the British equitable doctrine of part performance be extended in India also. The Special Committee was of the view that an illiterate or ignorant buyer who had partly performed his part of contract required statutory protection. The Committee was of the further view that where a transferee in good faith that lawful instrument i.e. a written contract would be executed by the transferor takes possession over the property, the equity demanded that the transferee should not be treated as trespasser by the transferor and subsequently evict him through process of law in the absence of lawful transfer instrument. The Special Committee also considered the question whether protection under the proposed Section 53-A to a transferee would also be available even if the period of limitation for bringing an action for specific performance of an agreement to sell has expired. On the said question, the Committee was of the view that even after expiry of period of limitation, the relationship between the transferor and transferee remains the same as it was within the period of limitation and, therefore, the possession over the property taken in part performance of an agreement is required to be protected even if the period of limitation for bringing an action for specific performance has expired."

37. In para 13 of the said judgment, it has been held that the underlying principles under Section 53-A of the Transfer of Property Act, was dealing with the concept of part performance is rather based on an equitable doctrine, which can be applied in relation to an accrual of material right over immovable property as per law, which has been attempted to be enforced before the Court of Law; under the strength of an agreement for sale, but in the present case the defence of 53-A, as per the view of this Court, will not be available to the petitioner at a later stage, when it was not the foundation, as to be a basis in the proceedings under Section 15 of the Act, and even 19 otherwise also, the plea and defence of Section 53-A, based on an agreement for sale, as already held above, cannot be a ground, which is available to the petitioner in the proceedings under Section 15 of Provincial Small Causes Courts Act, because, for the purposes of drawing the benefit of Section 53-A of the Transfer of Property Act, alleging transfer of possession in pursuance to the agreement for sale, there has had to be an establishment of facts, which were dealt with by the aforesaid judgment of Shrimant Shamrao Suryavanshi (Supra), referred to in para 16, which is extracted hereunder :-

"16. But there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A of the Act. The necessary conditions are :

(1) there must be a contract to transfer for consideration any immovable property;

(2) the contract must be in writing, signed by the transferor, or by someone on his behalf;

(3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained;

(4) the transferee must in part performance of the contract take possession of the property, or of any part thereof;

(5) the transferee must have done some act in furtherance of the contract; and (6) the transferee must have performed or be willing to perform his part of the contract."

The said principles are not being satisfied under the circumstances of the present case. Hence, the judgment is of no avail as per the opinion of this Court, as far as the petitioner is concerned, under the facts and circumstances of the present case.

38. In support of the above contention, the counsel for the respondent/landlord had made reference to a judgment reported in 1988 ALJ 718, Aftab and another Vs. IVth Additional District 20 Judge and others, wherein, the Coordinate Bench of the Allahabad High Court almost under an identical set of circumstances, has observed in para 7 of the said judgment, which is extracted hereunder:-

"7. The other ground given by the Additional District Judge in his order passed in review was that preliminary issue was framed in the case before the Judge, Small Causes Court whether the Sunni waqf Board was a necessary party in the suit and if the site and the house in suit was a kabristan and a waqf property. The Judge, Small Causes Court held that it was not a kabristan property vesting in the waqf Board and the Sunni Central waqf Board was not a necessary party in the suit. This order passed by the Judge, Small Causes Court was challenged in Civil Revision No. 80 of 1984 before the Additional District Judge who also dismissed the revision and hence it was finally decided between the parties that Sunni Central waqf Board was not a necessary party to the suit as there was no evidence on the record to show that the house in suit vested in the waqf Board This judgment of the learned District Judge dated 11-4-84 became final between the parties and it appears that this order was also not brought to the notice of the Additional District Judge, Respondent No. 1 earlier when he allowed the revision ordering the plaint to be returned for presentation to the proper court under Section 23 of the Provincial Small Causes Court Act. In view of the finality of the orders arrived at between the parties it became evident that the property was not a kabristan and it did not vested in the waqf and further that the provisions of Section 23 of the Provincial Small Causes Court Act were not attracted. It being so the plaint could not be ordered to be returned for presentation to the proper court and it appears that by the subsequent order passed by the Additional District Judge, he remedied a wrong order proved by him earlier. It has already been held by the Supreme Court in in case of Y.B. Patil v. Y.L. Patil, reported in: AIR 1977 SO 392, that the principles of res-judicata can be invoked not only in separate subsequent proceedings; they can be got attracted in subsequent stage of the same proceedings. Once an order made in the course of the proceedings became final, it would be binding on the stage of that proceedings. Hence the order that had become final between the parties in the proceedings, was binding on the parties in subsequent stage of the same proceedings. The result is that an order passed earlier that no intricate questions of title are involved so as to attract the provisions of Section 23 of the Provincial Small Causes Court Act and further that the property in dispute is not a waqf property belonged to Sunni Central Board, had become final and binding between the parties and the Additional District Judge, Respondent No. 3 had committed a manifest error in allowing the revision vide his order dated 21 31st August, 1985 on the ground that complicated questions of title are involved and hence ordered the plaint to be returned for presentation to the proper court in view of the provisions of Section 23 of the Provincial Small Causes Court Act and it is this order which had been remedied and set aside by the subsequent order passed by the Additional District Judge in review vide his order dated 3rd November, 1985 and hence this is not a fit case for interference in writ Jurisdiction under Article 226 of the Constitution, it has) already been held by this Court in the case of Mahendra Vikram Singh v. IVth Addl. District Judge Bareilly, reported in 1984 (2) ARC 361, that if the second order passed in review could be sustainable in law then it is well settled that an order which is illegal cannot be quashed or set aside in writ jurisdiction if quashing of such order results in bringing on record another illegal order. In another case of Chatter Sen Jain v. District Judge, Dehradun and others, reported in 1984 (2) ARC 437, it has been held that it is settled law that if the effect of quashing an order on the ground that it was without jurisdiction would be to restore another which is equally illegal and without jurisdiction, it would not be a fit case for the exercise of extra-ordinary jurisdiction under Article 226 of the Constitution. I am in respectful agreement with the view taken in the cases referred to above. Again in the case of Jagannath Prasad v. District Judge, Allahabad and others, reported in: 1987 (1) ARC 89, it was held that where the petitioner's J application under Section 23 of the Provincial Small Causes Court Act was rejected by the Court and that order became final, it was not open to the petitioner to move another application on a similar ground and the principles of res-judicata are applicable to these proceedings."

That the tenant's application or the plea raised under Section 23, once it has been considered by the Judge Small Causes and turned down, vide its judgment dated 02.12.1989, and the said order of rejecting the plea of Section 23, it has attained the finality, then it will not be open for the tenant to reopen the said issue, successively at the subsequent stages of the proceedings by any subsequent act or plea, which has a shape of a review of an order which has already attained finality.

39. Similar view was taken by yet another judgment of the Coordinate Bench of Allahabad High Court reported in ARC 1987 (1) 89, Jagannath Prasad Vs. District Judge, Allahabad and others, and there too it was an issue which was engaged consideration with 22 the regard to the impact of Section 23, and its correlated effect of Section 11 of the CPC, the Coordinate Bench of Allahabad High Court, yet again in para 7 and 10 of the said judgment had observed that once the plea of Section 23 has been rejected, apart from the fact that the second application on the same pretext is not tenable, since being barred by the principle of res judicata, because Section 11 of CPC will have a bearing even over an interlocutory proceedings, particularly, when an adjudication is repeatedly solicited on the said issue would have an impact on the initial proceedings of the Suit itself, the subsequent plea would not be available to be raised by the tenant, once it has already been turned down by the Court.

40. Besides the above logic and rationale, which this Court has already recorded in the aforesaid paragraphs for not accepting the contention raised by the petitioner in support of his case, for the purposes of scrutinizing the concurrent judgments rendered by both the Courts below in JSCC proceedings.

41. On the contrary, the learned counsel for the respondents had relied upon a catena of judgments to contend as to what would be the scope of interference over concurrent judgments, in a writ jurisdiction to deal with the aspect, which is being sought to be re- agitated by the petitioner in the Writ Petition, and in relation thereto, the learned counsel for the respondents had made reference to a judgment reported in 2004 (3) SCC 682, Ranjeet Singh Vs. Ravi Prakash, and particularly, he has drawn the attention of this Court to the ratio, which has been laid down in para 4 of the said judgment, wherein, the Hon'ble Apex Court had elaborately dealt with, as to what would be the scope and ambit of powers of Writ Courts under Articles 226/227 of the Constitution of India, while scrutinizing the fact findings, which has been recorded by the learned Trial Court in a Civil proceeding and which are concurrent in nature. Para 4 of the said judgment reads as under:-

"4. Feeling aggrieved by the judgment of the Appellate Court, the respondent preferred a writ petition in the/High Court of Judicature at Allahabad under Article 226 and alternatively under Article 227 of the Constitution. It was heard by a learned Single Judge of the High Court. The High Court has set aside the judgment of the Appellate Court and restored that of the Trial Court. A perusal of the judgment of the High Court shows that the High Court has clearly exceeded its jurisdiction in setting aside the judgment of the Appellate Court. Though not specifically stated, the phraseology employed by the High Court in its judgment, goes to show that the High Court has exercised its certiorari jurisdiction for correcting the judgment of the Appellate Court. In Surya Dev Rai v. Ram Chander Rai and Ors.: AIR 2003 SC 3044 , this Court has ruled that to be amenable to correction in certiorari jurisdiction, the error committed by the Court or Authority on whose judgment the High Court was exercising jurisdiction, should be an error which is self-evident. An error which needs to be established by lengthy and complicated arguments or by indulging into a long-drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Surya Dev Rai (Supra) that the jurisdiction was not available to be exercised for indulging into re-appreciation or evaluation of evidence or correcting the errors in drawing inferences like a court of appeal. The High Court has itself recorded in its judgment that - "considering the evidence on the record carefully" it was inclined not to sustain the judgment of the Appellate Court. On its own showing, the High Court has acted like an Appellate Court which was not permissible for it to do under Article 226 or Article 227 of the Constitution."

42. While giving its reasoning, while referring the finding recorded in para 4 of the said judgment, the Hon'ble Apex Court has made reference to yet an another judgment of the Hon'ble Apex Court itself reported 2003 (6) 675, Surya Dev Rai Vs. Ram Chandra Rai. If the judgment of Surya Dev Rai (Supra) is taken into consideration, in principle, the aspect about the amenability of writ of certiorari for correcting the errors allegedly committed by the Subordinate Courts, while exercising its jurisdiction under Article 227 of the Constitution of India, the Court has observed that the writ jurisdiction was not 24 available to be exercised by indulging in re-appreciation or re- evaluation of the evidence by correcting the errors in drawing inferences, as if the Court was exercising the powers of Court of Appeal.

43. In the light of the aforesaid two judgments, the learned counsel for respondent had tried to exert upon the fact that the scope of interference in a concurrent jurisdiction, which is concluded by finding of facts recorded by the Courts below, the Writ Courts has got its limited ambit of exercise of powers, while appreciating the evidence.

44. There is another logic for this Court, for accepting the aforesaid principles, particularly, in view of the facts and circumstances, which are involved in the present case, while this Court in its preceding paragraphs has already dealt with the aspect of conferment of title, as was claimed by the petitioner on the basis of the alleged agreement for sale and the restrictions imposed under law by Section 54 of the Transfer of Property Act.

45. The learned Senior Counsel for the respondents/landlord, had yet again made reference to another judgment which has been rendered by the Coordinate Bench of this Court; reported in 2005 (2) UD, 135, Smt. Sunita Devi Vs. State of Uttaranchal and others, and particularly, he has made reference to the observation which had been made in para 16 and 17 of the said judgment, which is extracted hereunder :-

"16. Under Article 227 of the Constitution, jurisdiction is supervisory and has to be exercised for keeping the sub- ordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction, which it does not have or has failed to exercise its jurisdiction, which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned, then only the High Court may step into supervisory jurisdiction and in a writ certiorari or in exercise of supervisory jurisdiction, none is available to correct 25 mere errors of facts or of law, unless the following requirements are satisfied as held by the Hon'ble Apex Court in Surydeo Rai v. Ram Chandra Rai MANU/SC/0559/2003 : 2003 (6) SCC 675 and subsequently in "Ranjeet Singh v. Ravi Prakash: 2004 (3) SCC 682.

(i) error is manifest and apparent on face of record, and

(ii) grave injustice or gross failure of justice has been occasioned thereby.

17. It has been observed by the Apex Court in the case of Surya Dev Rai (supra) that "On the other hand, supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does not have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave in-justice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction." In the latter case, the Apex Court has observed inter alia in paragraph 4 of the judgment that "An error which needs to be established by lengthy and complicated arguments or by indulging in a long-drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form two opinion on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Surya Dev Rai that the jurisdiction was not available to be exercised for indulging in reappreciation or evaluation of evidence or correcting the errors in drawing inferences like a court of appeal"".

46. In fact, if para 16 and 17 of the said judgment itself are taken into consideration, it is based upon the identical principles, which had been based upon the ratio propounded by Ranjit Singh Case (Supra) as well as that of Surya Dev Rai (Supra), already referred above.

47. This Court feels that it is an onerous duty of this Court to deal with the arguments specifically raised by way of an alternative plea by the petitioner, which though runs in contradiction to his defence taken on the basis of a conferment of title by an agreement for 26 sale as an alternative plea of adverse possession. This philosophy of a claim by way of an adverse possession, in its relation to the acknowledgment of the recognition of the title of the vendor excludes the theory of an adverse possession. The Hon'ble Apex Court in a judgment reported in JT 1989 (4) SC 322, Achal Reddi Vs. Ramakrishna Reddiar and others, had an occasion to deal with almost an identical situation about the bearing of a claim, which was raised by way of an adverse possession, and particularly, the findings have been recorded in para 8 and 9 of the said judgment, which is referred to hereunder :-

"8. There is no controversy that the plaintiff has to establish subsisting title by proving possession within 12 years prior to the suit when the plaintiff alleged dispossession while in possession of the suit property. The first appellate Court as well as the second appellate Court proceeded on the basis that the plaintiff is not entitled to succeed as such possession has not been proved. The concurrent finding that the plaintiff had title in spite of the decree for specific performance obtained against him, when that decree had not been executed are not assailed by the appellant in the High Court. The appellant cannot, therefore, urge before us on the basis of the findings in the earlier suit to which he was not a party that Ex.A-1 sale deed is one without consideration and does not confer valid title on the plaintiff. The sole question that has been considered by the High Court is that of subsisting title. We have to consider whether the question of law as to the character of the possession Varada Reddi had between 10-7-1946 and 17-7-1947 is adverse or only permissive. In the case of an agreement of sale the party who obtains possession, acknowledges title of the vendor even though the agreement of sale may be invalid. It is an acknowledgment and recognition of the title of the vendor which excludes the theory of adverse possession. The well- settled rule of law is that if a person is in actual possession and has a right to possession under a title involving a due recognition of the owner's title his possession will not be regarded as adverse in law, even though he claims under another title having regard to the well recognized policy of law that possession is never considered adverse if it is referable to a lawful title. The purchaser who got into possession under an executory contract of sale in a permissible character cannot be heard to contend that his possession was adverse. In the conception of adverse possession there is an essential and basic difference between a case in which the other party is put in possession of property by an outright transfer, both parties 27 stipulating for a total divestiture of all the rights of the transferor in the property, and in case in which there is a mere executory agreement of transfer both parties contemplating a deed of transfer to be executed at a later point of time. In the latter case the principle of estoppel applies stopping the transferee from contending that his possession, while the contract remained executory in stage, was in his own right and adversely against the transferor. Adverse possession implies that it commenced in wrong and is maintained against right. When the commencement and continuance of possession is legal and proper, referable to a contract, it cannot be adverse.

9. In the case of an executory contract of sale where the transferee is put in possession of the property in pursuance of the agreement of sale and where the parties contemplate the execution of a regular registered sale deed the animus of the purchase throughout is that he is in possession of the property belonging to the vendor and that the former's title has to be perfected by a duly executed registered deed of sale under which the vendor has to pass on and convey his title. The purchaser's possession such cases is of a derivative character and in clear recognition of and in acknowledgment of the title of the vendor. The position is different in the case where in pursuance of an oral transfer or a deed of transfer not registered the owner of a property transfers the property and puts the transferee in possession with the clear animus and on the distinct understanding that from that time onwards he shall have no right of title to the property. In such a case the owner of the property does not retain any vestige of right in regard to the property and his mental attitude towards the property is that it has ceased to belong to him altogether. The transferee after getting into possession retains the same with the clean animus that he has become the absolute owner of the property and in complete negation of any right or title of the transferor, his enjoyment is solely as owner in his right and not derivatively or in recognition of the title of any person. So far as the vendor is concerned both in mind and actual conduct, there is a total divestiture of all his right, title and interest in the property. This applies only in a case where there is a clear manifestation of the intention of the owner to divest himself of the right over the property. On the other hand in the case of an executory contract the possession of the transferee until the date of registration of the conveyance is permissive or derivative and in law is deemed to be on behalf of the owner himself. The correctness of the decision in Annamaliv. Muthiah : ILR (1965) Mad 254 (supra) cannot, therefore, be doubted."

48. The Hon'ble Apex Court in the aforesaid judgment of Achal Reddi (Supra), has held that a person in actual possession, 28 who admits the title of another person with whom, there subsisted a relationship of landlord and tenant, will not be regarded as a possession in adverse under law. Though, there may or might have been even an alternative plea raised by the occupant/tenant, having regard to the well recognized policy of law that a possession cannot be treated as to be an adverse, if it is referable to a lawful admitted recognized title, and particularly, when the alleged purchaser, i.e. the petitioner, herein, who contends that he has brought the title over the property, as a consequence of the executory contract, hence, the nature of possession has been held in the aforesaid judgment as to be a permissible in character, and cannot be contended to be an adverse and hostile as against the principle owner, who had agreed to sell the property.

49. Same principle has been laid down in para 9 of the said judgment, as referred above, where it has been held that the executory contract of possession of the transferee, until the date of registration of a deed of conveyance, is only permissible or derivative from the agreement and would not be treated as to be an adverse possession as against the proposed alleged seller of the property, as obviously his title and ownership stands admitted.

50. The learned counsel for the respondents had relied upon yet another Division Bench judgment reported in 2007 (1) UD 27, Bhupendra Singh Bora Vs. Diwan Singh Bora and another. Though it was a proceeding, which was being considered by the Division Bench; under 173 of the Motor Vehicles Act, arising out of the proceedings under Sections 165 and 166 of the Motor Vehicles Act, but the Court in para 15, has held as under:-

"15. The owner of the vehicle had filed the petition under Article 227 of the Constitution to set aside the award on the ground that the appeal was barred under the provisions of the Motor Vehicles Act as the award was less than Rs. 10,000/-. It is a settled position of law where a statutory right to file an 29 appeal has been provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution. It is also settled position of law where a remedy by way of an appeal has not been provided for against the order and judgment of the District Judge, the remedy available to the aggrieved person is to file revision before the court under Section 115 of the Code of Civil Procedure. If the remedy of the revision has also been prohibited under the enactment, then only a petition under Article 227 of the Constitution would lie and not under Section 226 of the Constitution. The Petitioner has filed the petition under Article 227 of the Constitution under the supervisory jurisdiction of the High Court. The jurisdiction under Article 227 of the Constitution is very limited one. The High Court while exercising the jurisdictions under Article 227 of the Constitution cannot reassess the evidence produced by the parties before the Tribunal. The High Court cannot correct the errors in its award. When the High Court exercising its jurisdiction under Article 227 of the Constitution, the court exercises the supervisory jurisdiction under the Constitution. The High Court does not sit as an appellate court and cannot enter into the factual and legal controversy arose before the Tribunal or before the lower court. As such, the writ petition filed by the owner of the offending vehicle Diwan Singh Bora is not maintainable. It has been held in Ghapoo Yadav and Ors. v. State of M.P. reported in : (2003) 3 SCC 528 as under:

...This being the legal position, the petition filed under Article 227 of the Constitution by the insurer was wholly misconceived. Where a statutory right to file an appeal has been provided for, it is not open to the High Court to entertain a petition under Article 227 of the Constitution. Even if where a remedy by way of an appeal has not been provided for against the order and judgment of a District Judge, the remedy available to the aggrieved person is to file a revision before the High Court under Section 115 of the Code of Civil Procedure. Where remedy for filing a revision before the High Court under Section 115 Code of Civil Procedure has been expressly barred by a State enactment, only in such case a petition under Article 227 of the Constitution would lie and not under Article 226 of the Constitution. As a matter of illustration, where a trial court in a civil suit refused to grant temporary injunction and an appeal against refusal to grant injunction has been rejected and a State enactment has barred the remedy of filing revision under Section 115 Code of Civil Procedure, in such a situation a writ petition under Article 227 would lie and not under Article 226 of the Constitution. Thus, where the State Legislature has barred a remedy of filing a revision petition before the High Court under Section 115 Code of 30 Civil Procedure, no petition under Article 226 of the Constitution would lie for the reason that a mere wrong decision without anything more is not enough to attract jurisdiction of the High Court under Article 226 of the Constitution.

7. The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is confined only to see whether an inferior court or tribunal has proceeded within its parameters and not to correct an error apparent on the face of the record, much less of an error of law. In exercising the supervisory power under Article 227 of the Constitution, the High Court does not act as an appellate court or the tribunal, it is also not permissible to a High Court on a petition filed under Article 227 of the Constitution to review or reweigh the evidence upon which the inferior court or tribunal purports to have passed the order or to correct errors of law in the decision."

51. The Court has yet again reiterated the same principle and the restrictions, which has to be exercised by the High Courts, in the exercise of its supervisory jurisdiction, and hence, on its basis the learned counsel for the respondents submits that the tenacity of the argument of the learned counsel for the petitioner, at this stage of the proceedings based on agreement for sale (unregistered), cannot be taken into consideration as to be the basis for defence altogether by carving out a new case, which was not even pursued or agitated by the petitioner before the learned Court below, by getting an appropriate point of determination formulated, as was anticipated by the petitioner.

52. The learned counsel for the petitioner had very strongly harped upon the defence which was taken in the light of the provisions contained under Section 53-A of the Transfer of Property Act, taking a plea of part performance, because it was persistently contended by the petitioner that the possession of the property was handed over to him, as soon as the unregistered agreement for sale was executed on 3rd January, 1974 in his favour. In answer to it, the learned counsel for the respondents had submitted that the said plea of a claim by way 31 of a part performance under Section 53-A of the Transfer of Property Act, would not be a plea available to the petitioner, as it has been settled by the Hon'ble Apex Court in a judgment reported in AIR 1999 SC 3248, Ram Kumar Agarwal and another Vs. Thawar Das (dead) through LRs., and particularly, he had drawn the attention of this Court to the contents of para 8 and 9, of the said judgment, which is extracted hereunder :-

"8. Plea under Section 53-A of the Transfer of, Property Act raises a mixed question of law and fact and therefore cannot be permitted to be urged for the first time at the stage of second appeal. That apart, performance or willingness to perform his part of the contract is one of the essential ingredients of the plea of part performance. Thawar Das having failed in proving such willingness protection to his possession could not have been claimed by reference to Section 53-A of the Transfer of Property Act.

9. For the foregoing reasons, we find the judgment of the High Court wholly unsustainable in law. The appeals deserve to be allowed, setting aside the judgment of the High Court."

53. The Hon'ble Apex Court in the said judgment has held that one of the most essential ingredients for the purposes of attracting, the principles of the defence of Section 53-A, as by way of a part performance, it has had to be accompanied and established by evidence on record; that the proposed purchaser of the property on the basis of the alleged agreement for sale had ever had an intention to prove his willingness and readiness to get the deed of conveyance executed, and in those eventuality, and particularly, when in the present case, the alleged agreement for sale deed of 1974, continued to exist till the JSCC Suit was filed in 1989, it cannot be said that the petitioner in order to seek his defence under Section 53-A, had ever attempted to show his readiness and willingness by any act of his for getting the sale deed executed and hence, the Hon'ble Apex Court in the aforesaid paragraph has held that, where the very concept of readiness and willingness, was not established, to be proved by evidence on record, the plea of part performance of an agreement for 32 sale under Section 53-A of the Transfer of Property Act, is not available to be agitated by the petitioner.

54. Though with a slight deviation, the learned counsel for the respondent for the purposes of answering the plea of Section 53-A of the Transfer of Property Act of the petitioner, has made a reference to yet another judgment of Hon'ble Apex Court as reported in AIR 1996 SC 910, Mohan Lal and others Vs. Mira Abdul Gaffar and another, wherein, the Hon'ble Apex Court in its para 5, 6 and 8, has held that the philosophy of part performance under Section 53-A, apart from the fact that it entails the establishment of the element of readiness and willingness on the part of the person in whose favour the agreement for sale, has been allegedly executed, what is more importantly required is that, there has had to be a suit for specific performance within a reasonable period of limitation, based on the alleged agreement for sale under the strength of which the title is claimed because in the absence of there being any suit for specific performance or in the absence of there being a deed of conveyance having being executed based on the alleged agreement for sale, the bar of Section 54 of Transfer of Property Act, will come into play as against the person, who is claiming his right on the basis of an agreement for sale. Paragraph Nos. 5, 6 and 8 are extracted hereunder:-

"5. The question then is whether he is entitled to retain possession under Section 53-A. It is an admitted fact that suit for specific performance had been dismissed and became final. Then the question is whether he is entitled to retain possession under the agreement. Once he lost his right under the agreement by dismissal of the suit, it would be inconsistent and incompatible with his right to remain in possession under the agreement. Even otherwise, a transferee can avail of Section 53-A only as a shield but not as a sword. It contemplates that 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 performed or is willing to perform his part of the contract, he would be entitled to retain possession and to continue in possession which he has already received from the transferor so 33 long as he is willing to perform his part of contract. Agreement does no create title or interest in the property. Since the agreement had met with dismissal of the suit his willingness to perform his part of the contract does not arise.

6. Even otherwise, in a suit for possession filed by the respondent, successor-in-interest of the transferor as a subsequent purchaser, the earlier transferee must plead and prove that he is ready and willing to perform his part of the contract so as to enable him to retain his possession of the immovable property held under the agreement. The High Court has pointed out that he has not expressly pleaded this in the written statement. We have gone through the written statement. The High Court is right in its conclusion. Except vaguely denying that he is not ready and willing to perform his part, he did not specifically plead it. Under Section 16(c) of Specific Relief Act, 1963, the plaintiff must plead in the plaint, his readiness and willingness from the date of the contract till date of the decree. The plaintiff who seeks enforcement of the agreement is enjoined to establish the same. Equally, when Transferee seeks to avail of Section 53-A to retain possession of the property which he had under the contract, it would also be incumbent upon the transferee to plead and prove his readiness and willingness to perform his part of the contract. He who comes to equity must do equity. The doctrine of readiness and willingness is an emphatic way of expression to establish that the transferee always abides by the terms of the agreement and is willing to perform his part of the contract. Part performance, as statutory right is conditioned upon the transferee's continuous willingness to perform his part of the contract in terms covenanted thereunder.

8. We are, therefore, of the view that the High Court is right in its conclusion that appellant is not entitled to retain possession. However, since the appellant has remained in possession under the agreement of sale, the respondent is not entitled to claim any damages from him."

55. Thus owing to the aforesaid, and for the reasons already recorded above, the entire contention raised by the petitioner in the present Writ Petition, can be summed up in the following manner for denying the relief sought for in a writ jurisdiction under Article 227 of the Constitution of India, and apart for the reasons aforesaid, and for the issues being dealt with hereunder, the Writ Petition lacks merits for the reason being that :-

i. That the plea of Section 23, apart from the fact that it was never sought to be formulated by the petitioner by way of getting a point of determination framed, but still, the learned Trial Court has already decided the said issue vide its order of 2nd December, 1989, which would be treated to have attained the finality and it was no more open for him to raise the plea of the Suit being barred by Section 23.

ii. The alternative plea of adverse possession, though not substantiated by any specific credible evidence on record, and besides for the reasons given in the light of the pronouncements laid down by the Hon'ble Apex Court, the plea of adverse possession taken as an alternative plea by a tenant on the basis of an unregistered agreement for sale, can never be treated as to be a possession, which is adverse to the landlord's interest over the property whose title otherwise stands admitted. Besides this, since it was not a question which was sought to be adjudicated by the petitioner by getting a specific point of determination framed, the same cannot be accepted, now at this stage in a writ jurisdiction under Article 227 of the Constitution of India, which would amount to be carving out a new case altogether, which was never attempted to be pressed before the Courts below.

iii. The logic for the above determination is that, though in principle, the proceedings of the JSCC Suit are governed by Order 50 of the CPC, which entails formulation of point of determination, based upon the plea raised by the parties but, in principle, there is no statutory bar that a party to the proceedings cannot pray for and get an issue formulated or a point of determination be formulated by attracting the principles of Order 14 Rules 4 and 5, and 35 since in the present case, no such efforts were ever made by the petitioner to get the point of determination framed; pertaining to the claim raised by the petitioner by way of adverse possession, the said defence would not be available to the petitioner at this stage, of the Writ Petition.

iv. The plea of the petitioner, has been negated by both the Courts below concurrently; so far it relates to the effect of an alleged agreement for sale dated 3rd January,1974, because after the remand of the matter by the Revisional Court and on the revival of the proceedings, the Advocate Commissioner has conducted a commission and has submitted its report, where it has observed that the tenement, in dispute, which was the subject matter of the Suit, was in the Northern part of the Commission's Report (Map) and the alleged property, which was agreed to be sold was lying in the South of the disputed property, described in the map annexed with the Commission report. Since the said Advocate Commission report has attained finality, after the determination of objection being raised by the petitioner, no benefit could be derived by the petitioner on the pretext that the tenement in question was the subject matter of the agreement for sale and he had a title over the property, hence, the suit itself was not maintainable.

v. As far as this Court is concerned, this Court is of the view, that the two pleas, i.e. the plea of title under the pretext of agreement for sale and the plea of adverse possession taken as an alternative plea (though not substantiated), they are contradictory pleadings to each other, because as already observed, that in the absence of there being any readiness and willingness shown and 36 proved by the petitioner by his conduct in the proceedings, the plea of adverse possession in the absence of there being any proceedings for specific performance, being initiated by him, would in itself create a doubt about the defence or a stand taken by him in the proceedings before the court below and, hence, the plea of adverse possession, itself damages the very foundation of the proceedings and the stand taken by the petitioner before the Courts below.

vi. The defence taken by the petitioner about the title being derived from an agreement for sale, i.e. paper No. 20C/1, could not be accepted by this Court for the reason being that, when the petitioner has responded to the notice of 16th June, 1989, terminating his tenancy, and while given its reply, the petitioner had not taken any defence to the said notice issued under Section 106 of the Transfer of Property Act, by taking a plea of title based on the agreement for sale, at the first available opportunity, while giving reply to the notice under Section 106 of Transfer of Property Act.

vii. There is another logic, why the plea of title or the plea of adverse possession cannot be accepted, by this Court, because as already observed in the preceding paragraphs, the proceedings statutorily contemplated for mutation under the Municipality Act, after a contest being put in by the petitioner in a Mutation Appeal No. 1 of 1989, under Section 160 of the Municipalities Act, it has attained finality, by an adjudication made, from the Court of the Chief Judicial Magistrate, and hence, as a consequence thereto, the respondent landlord has been recorded as to be an exclusively owner of the property, in question.

viii. The plea of title as claimed by the petitioner over the property, as already observed above, would not be available to the petitioner, under the garb of the alleged agreement for sale in view of the bar created by Section 54 of the Transfer of Property Act, in the absence of there being any deed of conveyance ever having been executed or got to be executed, or even attempted to be executed, and hence in the absence of the same, it is a settled law that mere agreement for sale will not confer a right or title over a property based on agreement for sale that too of 1974, claimed by tenant as defence.

ix. There is nothing on record, which was adduced by the petitioner to establish his readiness and willingness, to get the deed of conveyance executed because there had been no plea, whatsoever at any stage of the proceedings that the petitioner had ever filed any suit for specific performance as contemplated under Section 54, and in the absence of the same, the very concept of readiness and willingness, since not being available on record, by way of any evidence, it would be deemed that no right or title over the property whatsoever has been conferred on the petitioner on the basis of the said plea of title.

56. Apart from it, even if it is presumed that the petitioner had any foundation or legs to stand based upon an unregistered agreement for sale of 3rd January, 1974, there was no efforts which was ever made by the petitioner in the proceedings before the Court below, either at the stage of Section 15 or even at the stage of Revision under Section 25, to prove the validity of the agreement by producing evidence with regard to its valid execution; with regard to the fact of transfer of possession on the basis of the agreement for sale; because otherwise as per the ratio already dealt with above, once the title is accepted and the possession under the strength of an 38 agreement for sale is claimed, the plea of adverse possession, in the absence of there being an establishment of facts of readiness and willingness cannot be accepted, at the behest of the petitioner.

57. The respondent/landlord, had specifically come up with the case for the purposes of determining the title over the property, in question, to sustain the proceedings of the JSCC Suit, she had specifically made reference to a will which was executed on 18th November, 1974, by late Mr. Kali Ram, the predecessor in interest of the respondent No. 3, which was placed on record as an exhibit, paper No. 25-Ga. It is this will which has been taken into consideration, and has attained the finality when the Chief Judicial Magistrate, was deciding the Mutation Appeal under Section 160 of the Municipality Act. Not even that, the execution of the will itself was proved by respondent No.3, by producing witnesses, who were the witness of will, ie. PW1, Pooran Lal, and hence too, the title of respondent No.3, remained established by way of an evidence adduced by her on records before the Court below.

58. Hence, for the reasons aforesaid, I am not inclined to exercise my extra-ordinary supervisory jurisdiction under Article 227 of the Constitution of India, for the reason already given above. Hence, the Writ Petition lacks merits and the same is accordingly dismissed. The petitioner is directed to vacate the premises and hand over the vacant and peaceful possession, along with the decreetal amount and arrears of rent due to be paid till the date of the judgment within a period of 30 days from the date of the presentation of the certified copy of this judgment.

59. However, there would be no order as to costs.

(Sharad Kumar Sharma, J.) 01.04.2021 Shiv

Unlock Advanced Research with PRISMAI

Uttarakhand High Court