Mohd. Anwar vs Shabbir Hamad And Another
2013 Latest Caselaw 564 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

(AFR)
 
 Reserved on 01.11.2012
 
Delivered on 09.04.2013
 

 
Court No. - 34
 
Case :- WRIT - A No. -4739 of 2004
 
Petitioner :      Mohd. Anwar
 
Respondent :- Shabbir Ahmad and another
 
Petitioner Counsel :- M.A. Qadeer, Sr. Advocate, Shamim 					      Ahmad
 
Respondent Counsel :- Ashfaq Ahmad Ansari, Anil Sharma, 				         K.A.Usmani, Mohd. Arif, SC/ 
 

 
Hon'ble Sudhir Agarwal, J.

1. Heard Sri M.A. Qadeer, learned Senior Advocate, assisted by Sri Shamim Ahmad and Sri Anil Sharma, learned counsel appearing for respondents.

2. The dispute relates to residential house no. 25/514 (new no. 3/11), situate in Mohalla Ganpat Sarai, District Saharanpur. Respondent no.1 Shabbir Ahmad filed an application registered as P.A. Case No. 50 of 1996, under Section 21(1)(a) of Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, (hereinafter referred to as "the Act 1972"), before the Prescribed Authority/Judge, Small Causes Court, Saharanpur.

3. The case set up by respondent no.1 is that building in question is owned by him, and, in the tenancy of defendants Mohd. Anwar and Akhtar both sons of Mohd. Akbar. The tenancy commenced prior to 1975. The accommodation whereat respondent no.1 was residing along with family is highly insufficient and, therefore, the building in question is required for his personal use.

4. The application was contested by defendants, filing their separate written statements. The ownership of the plaintiff respondent no.1 and tenancy of defendant no.1, i.e. petitioner was not disputed. In the additional pleas, it was stated that in 1978, the house was single storied; on the ground floor there were three rooms, in which the defendants were residing. Landlord Shabbir Ahmad entered into an agreement to sell off the accommodation in dispute to Smt. Anjuman, wife of defendant no.1, i.e., petitioner. It was also agreed that the sale deed shall be executed after obtaining permission from District Magistrate since there was a ban on transfer of urban property without prior permission of District Magistrate. However, before anything could proceed further, the house, which was quite old, fell down due to rain in 1977. The landlord, however, did not agree for reconstruction but allowed petitioner's wife to get the house reconstructed, at her own cost. Defendant no.1 obtained permission from Nagar Palika for construction of house and after sanction of map on 07.08.1978, got it reconstructed . It is said that there was also a suit for specific performance, instituted by petitioner's wife, which was decreed, vide judgment and decree dated 08.03.1982, whereagainst Civil Appeal No. 118 of 1982 preferred by Shabbir Ahmad was allowed by Civil Judge, Saharanpur vide judgment dated 09.05.1984. Thereagainst Smt. Anjuman preferred a Second Appeal No. 1574 of 1984 which is pending before this Court. Smt. Anjuman, appellant in Second Appeal pending before this Court, died on 4.7.1997, hence, the petitioner and her other heirs and legal representatives have been substituted.

5. It was also pointed out that in the year 1981, Shabbir Ahmad instituted SCC Suit No. 5 of 1981, for recovery of arrears of rent, against petitioner respondent no.2. The suit was dismissed on 30.04.1983, giving benefit of Section 20(4) of Act 1972.

6. Petitioner i.e., defendant no.1, therefore, contested the application on the ground that agreement to sell in favour of his wife Smt. Anjuman, resulted in cessation of relationship of landlord and tenant, and, therefore, the application was liable to be rejected, particularly, when newly constructed house was owned and belonged to Smt. Anjuman. Respondent no.1 can not seek ejectment of petitioner therefrom. Besides above, the landlord's claim about personal need of the house, in question was also disputed on merits.

7. Defendant no.2 (respondent no.2 in this petition), brother of petitioner, as already said, filed separate written statement. He pleaded that only upper storey of the house fell down in 1977-78, due to heavy rains, and the building remained thereafter as a single storied house, which is in possession of defendants. A lot of repairs have been carried out by defendant tenants in the building, on clear representation by the landlord that he shall not seek release of the building. There is a collusion between landlord and defendant no.1 i.e., present petitioner, for ousting defendant no.2 from the house in question, therefore, application lacking bona fide and genuineness, should be rejected.

8. The Prescribed Authority, vide judgment dated 17.03.1998, allowed release application and directed petitioner and respondent no.2 to vacate the dispute building and hand over vacant possession to applicant landlord i.e., respondent no.1.

9. Only petitioner appealed against the aforesaid judgment, vide Rent Control Appeal No. 10 of 1998. The same has been dismissed by Additional District Judge (Court no.5) Saharanpur vide judgment dated 13.01.2004. The lower appellate court noticed finding recorded by Judge Small Causes Court in its judgment dated 30.04.1983 in SCC Suit no. 5 of 1981 to the effect that there was no new construction as alleged by the petitioner tenant and only some repair work was carried out. Provisions of Act 1972 already applicable, continued to apply to the building. The appellate court held that the aforesaid finding of fact is final and binding in subsequent proceedings also. With respect to the contention that judgement was not binding on the petitioner, lower appellate court held, since both the brothers, i.e. petitioner and respondent no.2 were joint tenants and parties in the suit, the judgment would be binding on them. It thus held that finding recorded in earlier proceedings, between the same parties, cannot be re-adjudicated. He has also observed that even in the present proceedings, petitioner has not adduced any credible evidence to show that a new construction or reconstruction of building was undertaken by himself or his wife Smt. Anjuman. The mere factum of getting a map sanctioned, was not sufficient. No documents relating to purchase of building materials etc. was produced before the courts below. In absence of any evidence to prove that any construction activities for reconstruction of building were carried out, the contention raised by petitioner to this effect, even otherwise, found not proved. The appellate court, also reiterated and affirmed the findings of Prescribed Authority that the existing accommodation in which landlord alongwith entire family and two brothers was residing, was inadequate and in absence of any other accommodation available to him, his plea for requirement of building in dispute for personal use was bona fide and genuine. Thereafter, he also considered the question of comparative hardship and found that the petitioner tenant had already purchased a plot vide sale deed dated 11.3.1996 and he could have got his house constructed thereupon during pendency of the appeal but having not done so in the last eight years, the issue of comparative hardship also held against him and in favour of landlord.

10. Sri M.A. Qadeer, learned Senior Advocate argued that execution of agreement to sell by respondent no.1 in favour of petitioner's wife resulted in cessation of relation of landlord and tenant between them and that being so, application under Section 21(1)(a) of Act 1972, by respondent no.1, for ejectment of petitioner from the disputed building was tenable and, hence, impugned orders are without jurisdiction. He submitted that this aspect was specifically pleaded and raised before the courts below, but they have ignored to record any finding thereon only on the ground that this issue is pending before this court in Second Appeal No. 1574 of 1984. He further urged that so long this appeal is pending and till this issue is decided, the application for release of disputed building resulting in ejectment of petitioner from disputed building, could not have been allowed and the matter ought to have been deferred.

11. He next submitted that the building, as it existed earlier, fell down and thereafter it was reconstructed by petitioner and his wife, incurring own expenses and, therefore, they cannot be evicted therefrom for the reason that the newly constructed building belongs to the petitioner.

12. From record, I find that Second Appeal No. 1574 of 1984 has been decided by judgment dated 02.04.2010. This Court has set aside the judgment of the lower appellate court, and, restored and confirmed the judgment and decree passed by trial court and allowing appeal, has decreed the suit for specific performance. Against the judgment dated 02.04.2010, SLP (Civil Appeal No. 4116 of 2012) has been filed by respondent no.1 Shabbir Ahmad and therein, an interim order, directing parties to maintain status quo has been passed on 04.04.2012 and that appeal is pending.

13. Sri Qadeer submitted that so long appeal is pending in the Apex Court, hearing in this writ petition must be deferred.

14. He lastly contended that findings recorded by SCC Court in its judgment dated 30.04.1983 in SCC Suit No. 5 of 1981 cannot operate as res judicata for the reason that the suit was ultimately dismissed and petitioner had no remedy to file revision thereagainst. The findings recorded in proceedings summary in nature, shall not operate as res judicata. The right of estate of Anjuman, having been succeeded by petitioner, he has right to continue in possession and by virtue of Section 53-A of Transfer of Property Act, 1882 (hereinafter referred to as Act 1882"), cannot be evicted from the building in dispute, since relationship of landlord and tenant had ceased.

15. During the course of argument before this Court Sri M.A. Qadeer sometimes advanced argument, treating the petitioner to be tenant of the building throughout, since before 1975 till date, and, sometimes his argument took the shape by assuming his status that of a prospective buyer and pursuant to part performance of agreement to sell as owner, as if the status of tenant has come to an end. It is in these circumstances, this Court required him to clarify on this aspect, whereupon, he got following statement recorded under Order X Rule 2 CPC on 01.11.2012.

"1. The petitioner was tenant of the building and land before the alleged fall of building.

2. After building fell down in July, 1978, the tenancy rights continued."

16. Sri Anil Sharma, learned counsel appearing for respondent no.1 submitted that the petitioner continued to be a tenant of the building in dispute. There was no reconstruction of building and Section 53A of Act 1882 having no application in the case in hand, relationship of landlord and tenant continued between the petitioner and respondent no.1. The courts below have rightly rejected otherwise contention of petitioner. After recording concurrent findings on the question of personal need and comparative hardship, have rightly allowed release application. There is no patent or manifest error in the impugned judgments, and, therefore, under Article 226/227 of Constitution of India, this Court may not interfere with the judgments in question.

17. First of all, I proceed to consider the question of status of petitioner vis a vis respondent no.1, in the light of alleged agreement to sell dated 31.07.1975. It is admitted between the parties that the question of specific performance to enforce aforesaid agreement is presently pending before the Apex Court. There is no question of any finding to be recorded on this aspect since this Court has already decided the matter in Second Appeal No. 1574 of 1984 vide judgment dated 02.04.2010, and appeal whereagainst is pending before the Apex Court. However, it would be pertinent to look into the issues raised, argued and decided therein to find out whether they would have any implication on the case in hand.

18. I find that original suit no. 5 of 1981 was filed for specific performance of enforcing agreement to sell dated 31.07.1975 which was executed between respondent no.1 and Smt. Anjuman wife of Mohd Anwar. The suit was decreed by Trial Court on 08.03.1982 but the judgment was reversed by lower appellate court, vide judgment dated 09.05.1984, holding suit barred by limitation. The question up for consideration before this Court in Second Appeal was about limitation. This Court held that refusal to execute sale deed came in October 1980 and suit thereafter was filed within three years, therefore, it is within the period of limitation.

19. For the purpose of present case, I proceed to decide applicability of Section 53-A of Act 1882, treating that there was an agreement to sell dated 31.07.1975 between respondent no.1 and Smt. Anjuman, wife of petitioner and he had a right to enforce it.

20. For this Court, the question would be, whether this by itself can attract Section 53A or not and would result in cessation of relationship of landlord and tenant i.e., respondent no.1, the petitioner or, his wife, Smt. Anjuman. For this purpose, this Court proceeds to consider Section 53A and implications, requirements and consequences. Section 53A of Act, 1882 reads as under:

"53A. Part performance.- Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract,then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:

Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."

21. In order to take shelter behind the above provision, one has to satisfy the following conditions, as are evident from bare reading of Section 53A:

(i) The contract should have been in writing, signed by or on behalf of transferor.

(ii) The transferee should have got possession of immovable property covered by contract as a part-performance of the contract.

(iii) If the transferee is already in possession and he continues in possession in part-performance of the contract, he further should have done some act in furtherance of the contract.

(iv) The transferee has either performed his part of contract or is willing to perform his part of the contract.

22. It has been held repeatedly that all the postulates of Section 53A are sine qua non. A party cannot derive benefit by fulfilling only one or more conditions. It must have to satisfy all the conditions altogether. In taking the above view I am fortified by decisions in FGP Limited Vs. Saleh Hooseini Doctor & Anr. (2009) 10 SCC 223 (Paras, 24, 25, 26, 27, 28, 29 & 30), Nanjegowda & Anr. Vs. Gangamma & Ors. (2011) 13 SCC 232 (paras 9 to 12) and Shrimant Shamrao Suryavanshi & Anr. Vs. Prahlad Bhairoba Suryavanshi (D) by Lrs. & Ors. JT 2002(2) SC 24.

23. In para 17 of the judgment in Shrimant Shamrao Suryavanshi & Anr. (supra), the Court, after noticing various conditions applicable in Section 53A, has said:

"We are, therefore, on the opinion that if the conditions enumerated above are complied with, the law of limitation does not come in the way of a defendant taking plea under section 53-A of the Act to protect his possession of the suit property even though a suit for specific performance of a contract is barred by limitation."

24. Learned counsel for petitioner submitted that respondent no.1 in permitting the petitioner and his wife Smt. Anjuman to raise new construction after the building had fallen down, due to rains, by conduct has shown an act in furtherance of contract dated 31.7.1975 and therefore, Section 53A would be attracted. I find it difficult to agree. There are various reasons therefor. Firstly, this was an issue specifically raised between the petitioner and respondent no.1 in SCC Suit no. 5 of 1981. A finding of fact has been recorded against the petitioner in the trial court's judgment dated 30.04.1983 that he failed to prove any reconstruction. The suit in its entirety was not dismissed. Since it was filed for recovery of arrears of rent and ejectment of petitioner from disputed building on the ground of default in payment of rent i.e., under Section 20(2)(a) of Act 1972, the trial court considered the following issues:

1. Whether provisions of U.P. Act No. 13 of 1972 are applicable to the property in dispute? If yes, its effect.

2. What is rate of rent ?

3. Whether the defendants have committed any default in payment of rent? If yes, its effect.

4. Whether defendant is entitled to benefit of Section 20(4) of UP Act No. 13 of 1972 ?

5. Relief .

25. Thus, applicability of Act 1972 was disputed in the above suit by petitioner tenant on the ground that there was a new construction in 1978 and, therefore, Act 1972 was inapplicable. Defendant no.2, i.e., respondent no.2 who was also tenant in the building in dispute and is brother of petitioner, did not raise such plea. He did not aver that the building in dispute had ever fallen down and was reconstructed by petitioner, i.e. defendant no.1 therein. No evidence was adduced by petitioner before trial court to prove that building was newly constructed. A categorical finding was recorded by trial court while deciding issue no.1 that there was no new construction as alleged but only a damaged wall was repaired/reconstructed. The trial court thereafter held that the tenancy had continued throughout. The petitioner and defendant no.2 were liable to pay rent, but having failed to do so, they committed default in payment of rent. Having held that the petitioner and respondent no.2 having incurred liability for ejectment on the ground of default, the Trial Court proceeded to hold that since entire rent and other dues, as contemplated in Section 20(4) of Act 1972, have been deposited before the first date of hearing of the suit, the tenants were entitled to protection against ejectment under Section 20(4) and extending the aforesaid benefit, relief insofar as it relates to ejectment of tenant from the building in dispute was declined to respondentSale how made--Such transfer, in the case of tangible immovable property of the value of hundred rupees and upwards, or in the case of aversion or other intangible thing, can be made only by a registered instrument. no.1. The landlord was permitted to withdraw rent and other amounts already deposited with the Court under Section 20(4) and to that extent the suit was decreed. The findings recorded by Small Causes Court in its judgment dated 30.04.198Sale how made--Such transfer, in the case of tangible immovable property of the value of hundred rupees and upwards, or in the case of aversion or other intangible thing, can be made only by a registered instrument.3 as also the final order for ready reference may be reproduced:

^^ oknh izfroknhx.k dh csn[kyh dk vuqrks"k ikus dk vf/kdkjh ugha ik;k tkrkA ;w0ih0 ,DV uEcj 13 lu 72 dh /kkjk 20¼4½ ds vUrxZr teklqnk fdjk;k [kpkZ vkfn oknh izkIr djus dk vf/kdkjh gS .

vkns'k

okn izfroknhx.k dh csn[kyh ds fy, [kkfjt fd;k tkrk gSA /kkjk 20¼4½ esa tek fd;s x;s fdjk;k [kpkZ eqdnek vkfn ds fy, okn fMxzh fd;k tkrk gSA "

"Plaintiff is not found entitled to the relief of eviction of defendants. Plaintiff is entitled to get the rent, cost of suit, etc., deposited under Section 20(4) of U.P. Act 1972.

Order

Suit for eviction of defendants is dismissed. Suit for arrears of rent, expenses of litigation etc. deposited under Section 20(4) is decreed."

26. The above judgment has attained finality. In view of the above, contention of petitioner that since the suit was dismissed, therefore, he had no right to challenge findings with respect to new construction, is not correct. The judgment dated 30.04.1983 having attained finality, the aforesaid findings referred in the aforesaid judgment, in my view, shall operate as res judicata. It is not open to petitioner to agitate the same issue in the present proceedings.

27. In view of above, it also cannot be accepted that there is any further act after execution of agreement to sell dated 31.07.1975, so as to attract Section 53A of Act 1882 in the case in hand.

28. Even otherwise, vis-a-vis respondent no.1 tenancy rights vested in the petitioner and respondent no.2. There was no agreement to sell executed by respondent no.1, with either of them. Therefore, also, I am of the view that Section 53A of Act 1882 would not have any application in the present case. In the absence of application under Section 53A, mere execution of agreement to sell, does not have the effect of transfer of any right of ownership with the prospective buyer.

29. Assuming that Section 53A has an application, still it will not confer the status of owner on the petitioner. Contract for sale (agreement to sell) has been defined in Section 54 of Act 1882 and it also provides that mere agreement to sell will not result in transferring ownership rights upon the prospective buyer.

30. The agreement for sale or contract for sale, by itself is not an instrument giving effect to sale of immoveable property. The title to property agreed to be sold continued to vests in the vendor, in case of agreement for sale, but in case of sale, title or property vests with purchaser. In other words an agreement for sale is an executory contract whereas sale is an executed contract. An agreement for sale does not create an interest in the proposed vendee in the suit property but only creates an enforceable right in parties. An agreement for sale of property, and promise to transfer the property convey the same meaning and effect in law. A promise to transfer property is an agreement for sale of property.

31. In Maung Shwe Goh Vs. Maung Inn, 1917(1) Bom LR 179 the Court considered Section 54 of Act, 1882 and said that a contract for sale by virtue of Section 54 creates no interest in or charge upon the land.

32. Again in Rupchand Balmukund Aharwala Vs. Jankibai Kanhyalal, AIR 1926 Bom 24 the Division Bench of Bombay High Court said that an agreement executed between the parties to divide property at the expiration of litigation would not create any interest on property under the provisions of Section 54 of Act, 1882. A temporary arrangement with regard to profits during litigation is nothing but a system evolved by parties amongst themselves from management of property during litigation, does not mean that it has created any right or interest in property itself. The Court relied on an earlier decision of Privy Council in Rajangam Ayyar Vs. Rajangam Ayyarta, ILR (1922) Mad. 373 where a document, i.e., a memorandum regarding secession of jointness of parties making a declaration that from that time forth the parties became entitled to possession and enjoyment of their properties in separate shares and further providing for execution of further deed effectuating partition would mean that document/ memorandum itself did not create or declare or assign or limit or extinguish any right or interest in the moveable property.

33. In English Law, there is recognition of two classes of ownership, legal and equitable but this has not been recognized in Indian Law. Here the Legislature has recognized, in its wisdom, only one owner. There has been a catena of authorities including that of Privy Council in Chhatra Kumari Devi v. Mohan Bikram Shah and Ors., AIR 1931 PC 196 where it was observed that the Indian Law does not recognize legal and equitable estates. The Privy Council referred to and relied on earlier decisions in J.M. Tagore Vs. G.M. Tagore (1872) IA Sup. Vol. 47 and Webb Vs. Macpherson, (1904) 31 Cal 57. The Privy Council further said that by that law there can be only one owner.

34. It is thus evident that the law as it stand is very clear that contract for sale would not make the purchaser/vendee to be owner in equity of estate so long as the sale deed is executed and registered. Mere execution of contract for sale by itself would not create any right or interest in property.

35. In Rambaran Prosad v. Ram Mohit Hazra and Ors., AIR 1967 SC 744 it was held that a contract for sale does not create any interest in property. A three Judge Bench of the Court noticed distinction in law as it was prior to enactment of Act, 1882 and thereafter. In para 14 of the judgment, it said, that in the case of an agreement for sale entered into, prior to passing of Transfer of Property Act, could have resulted in creating an interest in land itself in favour of purchaser. Thereafter the Court referred to the change resulted with enactment of Act, 1882, and in para 17, said as under:

". . . . . a mere contract for sale of immovable property does not create any interest in the immovable property and it therefore follows that the rule of perpetuity cannot be applied to a covenant of pre-emption even though there is no time limit within which the option has to be exercised." (emphasis added)

36. The Court also noticed, when agreement itself recited with that sale deed would be executed within three years, the purchaser had a right to sue for specific performance and this by itself mean that agreement for sale does not create any right or interest in property.

37. In Jiwan Das Vs. Narain Das, AIR 1981 Delhi 291 a Single Judge in para 10 and 11 of the judgment following Rambaran Prosad (supra) said:

"10. . . . . . . the law in India does not recognise any such estate. Section 54 of the Transfer of Property Act in specific terms provides that a contract for sale does not, of itself, create any interest in or charge on such property. Such contract is merely a document creating a right to obtain another document in the form of sale deed to be registered in accordance with law. In other words, a contract for sale is a right created in personam and not in estate, No privity in estate can be deduced there from which can bind estate, as is the position in cases of mortgage, charge or lease. Of course, such personal right created against the vendor to obtain specific performance can ultimately bind any subsequent transferee who obtains transfer of the property with notice of the agreement of sale.

11. Till, therefore, a decree for specific performance is obtained, the vendor or a purchaser from him is entitled to full enjoyment of the property. In fact, even if a decree for specific performance of contract is obtained, and no sale-deed is actually executed, it cannot be said that any interest in the property has passed."

38. In Sujan Charan Lenka and others Vs. Smt. Pramila Mumari Mohanty and others, AIR 1986 Ori 74 the Court in para 7 of judgment said that a bare contract for sale of immoveable property does not create any interest in immoveable property. Referring to Section 54 of Act, 1882, it says:

"7. . . . . . a contract for sale does not, by itself, create any interest in or charge on such property. Such contract is merely a document creating a right to obtain another document in the form of sale deed to be registered in accordance with law. In other words, a contract for sale is a right created in personam and not in estate. No privity in estate can be deduced therefrom which can bind the estate, as is the position in cases of mortgage, charge or lease. Of course, such personal right created against the vendor to obtain specific performance can ultimately bind any subsequent transferee who obtains transfer of the property with notice of the agreement of sale. Till, therefore, a decree for specific performance is obtained, the vendor or a purchaser from him is entitled to full enjoyment of the property. In fact, even if a decree for specific performance of contract is obtained, and no sale-deed is actually executed, it cannot be said that any interest in the property has passed."

39. A Division Bench in Dewan and sons Investments Pvt. Ltd. Vs. Delhi Development Authority, AIR 1997 Delhi 388 said:

"6. In our opinion, the submission of the learned counsel for the petitioner that as a result of agreement to still dated the 1st May. 1970 in respect of the properly in question, entered into between the petitioner and M/s. Goodwill India Limited, the petitioner had acquired a 'vested right' not only in the property in question bill also to claim a 'No Objection Certificate' on that basis, is devoid of substance. . . . . . . In Kanaya Ram v. Rajender Kumar, AIR 1985 SC 371 their Lordships of the Supreme Court have held that in cases where after oral sales mutation of lands was effected in favour of the transferees even then i.e. after the mutation of properties, no rights accrued in favour of the transferees in respect of such lands as the purported sales and the subsequent mutation based on those sales did not create any right or title in favour of the transferees as the provisions of Section 54 of the Transfer of Property Act were not complied with-their being no registered sale deeds. In the present case too the agreement to sell dated the 1st May, 1970 in the absence of any registered sale deed by itself would not be sufficient to create any right or title in favour of the petitioner in respect of the property in question. The registered sale deed, admittedly, in respect of the property in question, was executed on 13-2-90 and thus the petitioners acquired a right and a title in respect of the property in question only after the execution of the registered sale deed on 13-2-90." (emphasis added)

40. A person who has contracted to buy land is not the owner of any interest in the land and is, therefore, not competent to apply to set aside an execution sale of the same land.

41. Section 54 itself says that a contract for sale does not create any interest in or charge upon such property. This is what has been noticed by this Court in Indira Fruits and General Market, Meerut Vs. Bijendra Kumar Gupta, AIR 1995 All 316.

42. In other words, a person having an agreement for sale in his favour does not get any right in the property except the right of litigation on that basis. Sometimes it is also described that a contract for sale is merely a document, creating a right to obtain another document.

43. In Imtiaz Ali Vs. Nasim Ahmed, AIR 1987 Del 36 it was said that in absence of a registered sale deed, nobody can call himself as owner by purchase, on the basis of agreement for sale and power of attorney executed by alleged vendor in favour of prospective purchaser cum attorney. The agreement for sale, therefore, by itself does not create any status to petitioner to enter into the shoes of owner of building in dispute.

44. So long as the sale deed is not executed, respondent no.1 shall continue to be the owner and landlord of property in dispute. Pendency of a litigation regarding specific performance for enforcement of agreement to sell dated 31.07.1975 therefore, would not affect the present proceedings inasmuch as, till sale deed is executed, status of owner and landlord shall continue with respondent no.1 and, whenever sale deed would be executed, the person who acquires ownership rights, shall be at liberty to take possession of property in accordance with law but in anticipation thereof, otherwise rights existing and sought to be enforced by respondent no.1, can neither be deferred nor frustrated nor denied.

45. So far as the finding of the courts below on the question of personal need, bona fide need and comparative hardship are concerned, in my view, concurrent findings in that regard have been recorded and Sri Qadeer, learned Senior counsel has also not been able to point out any such manifest error therein so as to warrant interference of this Court.

46. The scope of judicial review in such matters where the orders of courts below are assailed before this Court in a writ petition under Article 226/227 of the Constitution is very limited. This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes.

In D. N. Banerji Vs. P. R. Mukherjee 1953 SC 58 the Court said: The scope of judicial review in such matters where the orders of courts below are assailed before this Court in a writ petition under Article 226/227 of the Constitution is very limited. This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes.

47. In D. N. Banerji Vs. P. R. Mukherjee 1953 SC (Supra) the Court said:

"Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under articles 226 and 227 of the Constitution to interfere."

48. A Constitution Bench of Apex Court examined the scope of Article 227 of the Constitution in Waryam Singh and another Vs. Amarnath and another AIR 1954 SC 215 and made following observations at p. 571 :

"This power of superintendence conferred by article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee AIR 1951 Cal. 193, to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors".

49. In Mohd. Yunus v. Mohd. Mustaqim and Ors. AIR 1984 SC 38, the Court held that this Court has very limited scope under Article 227 of the Constitution and even the errors of law cannot be corrected in exercise of power of judicial review under Article 227 of the Constitution. The power can be used sparingly when it comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. The High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of the Tribunal, etc. has resulted in grave injustice.

50. For interference under Article 227, the finding of facts recorded by the Authority should be found to be perverse or patently erroneous and de hors the factual and legal position on record. (See: Nibaran Chandra Bag Vs. Mahendra Nath Ghughu, AIR 1963 SC 1895; Rukmanand Bairoliya Vs. the State of Bihar & ors., AIR 1971 SC 746; Gujarat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha & ors., AIR 1980 SC 1896; Laxmikant R. Bhojwani Vs. Pratapsing Mohansingh Singh Pardeshi, (1995) 6 SCC 576; Reliance Industries Ltd. Vs. Pravinbhai Jasbhai Patel & ors., (1997) 7 SCC 300; M/s. Pepsi Food Ltd. & Anr. Vs. Sub-Judicial Magistrate & ors., (1998) 5 SCC 749; and Virendra Kashinath Ravat & ors. Vs. Vinayak N. Joshi & ors. (1999) 1 SCC 47).

51. It is well settled that power under Article 227 is of the judicial superintendence which cannot be used to up-set conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could ever have reached them. (See: Rena Drego Vs. Lalchand Soni & ors., (1998) 3 SCC 341; Chandra Bhushan Vs. Beni Prasad & ors., (1999) 1 SCC 70; Savitrabai Bhausaheb Kevate & ors. Vs. Raichand Dhanraj Lunja, (1999) 2 SCC 171; and Savita Chemical (P) Ltd. Vs. Dyes & Chemical Workers' Union & Anr.,(1999) 2 SCC 143).

52. Power under Article 227 of the Constitution is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter the conclusion reached by the Competent Statutory Authority merely on the ground of insufficiency of evidence. (See: Union of India & ors. Vs. Himmat Singh Chahar, (1999) 4 SCC 521).

53. In Ajaib Singh Vs. Sirhind Co-opeative Marketing cum Processing Service Society Ltd., (1999) 6 SCC 82, the Court has held that there is no justification for the High Court to substitute its view for the opinion of the Authorities/ Courts below as the same is not permissible in proceedings under Articles 226/227 of the Constitution.

54. In Mohan Amba Prasad Agnihotri Vs. Bhaskar Balwant Aheer, AIR 2000 SC 931, the Court said that jurisdiction of High Court under Article 227 of the Constitution is not appealable but supervisory. Therefore, it cannot interfere with the findings of fact recorded by Courts below unless there is no evidence to support findings or the findings are totally perverse.

55. In Indian Overseas Bank Vs. Indian Overseas Bank Staff Canteen Workers' Union (2000) 4 SCC 245, the Court observed that it is impermissible for the Writ Court to reappreciate evidence liberally and drawing conclusions on its own on pure questions of fact for the reason that it is not exercising appellate jurisdiction over the awards passed by Tribunal. The findings of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. The same cannot be disturbed for the mere reason of having based on materials or evidence not sufficient or credible in the opinion of Writ Court to warrant those findings. At any rate, as long as they are based upon some material which are relevant for the purpose no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court can not interfere.

56. In Union of India Vs. Rajendra Prabhu, (2001) 4 SCC 472, the Court observed that the High Court, in exercise of its extraordinary powers under Article 227 of the Constitution, cannot re-appreciate the evidence nor it can substitute its subjective opinion in place of the findings of Authorities below.

57. Similar view has been reiterated in State of Maharashtra Vs. Milind & ors., (2001) 1 SCC 4; Extrella Rubber Vs. Dass Estate (P) Ltd., (2001) 8 SCC 97; and Omeph Mathai & ors. Vs. M. Abdul Khader, (2002) 1 SCC 319.

58. In Surya Dev Rai Vs. Ram Chander Rai and others (2003) 6 SCC 675, it was held that in exercise of supervisory power under Article 227, High Court can correct errors of jurisdiction committed by subordinate Courts. It also held that when subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or jurisdiction though available is being exercised in a manner not permitted by law and failure of justice or grave injustice has occasioned, the Court may step in to exercise its supervisory jurisdiction. However, it also said that be it a writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or law unless error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law; or, a grave injustice or gross failure of justice has occasioned thereby.

59. In Jasbir Singh Vs. State of Punjab (2006 ) 8 SCC 294, the Court said:

"...while invoking the provisions of Article 227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the subordinate courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior courts in the discharge of their judicial functions."

60. In Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil (2010) 8 SCC 329, the Court said that power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court. The above authority has been cited and followed in Kokkanda B. Poondacha and others Vs. K.D. Ganapathi and another AIR 2011 SC 1353 and Bandaru Satyanarayana Vs. Imandi Anasuya (2011) 12 SCC 650.

61. In Abdul Razak (D) through Lrs. & others Vs. Mangesh Rajaram Wagle and others (2010) 2 SCC 432, Court reminded that while exercising jurisdiction under Article 226 or 227, High Courts should not act as if they are exercising an appellate jurisdiction.

62. In T.G.N. Kumar Vs. State of Kerala and others (2011) 2 SCC 772, the Court said that power of superintendence conferred on the High Court under Article 227 of the Constitution of India is both administrative and judicial, but such power is to be exercised sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority.

63. In Commandant, 22nd Battalion, CRPF and others Vs. Surinder Kumar (2011) 10 SCC 244, Apex Court referring to its earlier decision in Union of India Vs. R.K. Sharma (2001) 9 SCC 592 observed that only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Articles 226 or 227.

64. In absence of any manifest error or patent illegality, etc., this Court would not disturb concurrent findings of facts recorded by Courts below.

65. In view of the above, the writ petition is dismissed.

66. Costs made easy.

Dated: April 9; 2013

Akn.