Ram Pratap Singh vs Suresh Chandra & Another
2014 Latest Caselaw 1170 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

										   AFR											             Reserved
 
Case :- WRIT - C No. - 10227 of 2014
 

 
Petitioner :- Ram Pratap Singh
 
Respondent :- Suresh Chandra & Another
 
Counsel for Petitioner :- Lokendra Kumar
 
Counsel for Respondent :- Rahul Mishra
 

 
Hon'ble Pankaj Mithal,J.

Petitioner has invoked the writ jurisdiction of this court to avoid the decree of arrears of rent and eviction passed by the Small Causes Court on 20.7.1984 by assailing the order dated 16.11.2013 dismissing his objections under Section 47 C.P.C. and the order dated 15.1.2014 dismissing the revision arising therefrom.

The dispute is in connection with house No.120, Mohalla Chaudharana, Fatehpur. It was the property of one Smt. Mithana Devi, widow of late Babu Lal. The petitioner was tenant of the same. It was purchased by the respondents from Mithana Devi, vide registered sale deed dated 24.5.1982.

On the strength of the above sale deed claiming themselves to be the owners and the landlords the respondents instituted SCC suit No. 7 of 1984 against the petitioner for arrears of rent and eviction. The suit was decreed ex parte on 20.7.1984.

The petitioner applied for setting aside the above ex parte decree under Order IX Rule 13 C.P.C. The application was allowed on 19.1.1985 but the said order was set aside on 28.5.1985 in revision preferred by the respondents.

The petitioner challenged the revisional order by means of writ petition No.8524 of 1985 and the same was dismissed on 21.7.2005 holding that the decree cannot be set aside for non compliance of Section 17 of the Provincial Small Causes Court Act, 1887 (hereinafter after referred to as the Act). The court dismissing the writ petition in view of the contention of the petitioner that the previous owner Smt. Mithana Devi had executed an agreement to sell on 26.2.1976 in his favour, left the question of title to be decided in a civil suit with the observation that the findings of the SCC suit would not operate as res judicata therein. At the same time, the petitioner was granted time till 31.3.2006 to vacate the house by depositing the entire amount as decreed with the court below.

In the net result, the ex parte decree dated 20.7.1984 passed in SCC suit No.7 of 1984 for arrears of rent and eviction became final and conclusive between the parties.

The respondents applied for the execution of decree vide execution case No. 3 of 2007. In the execution, petitioner preferred objections under Section 47 C.P.C. contending that the decree is nullity and is not liable to be executed. The objections registered as Misc. Case No.99/74 of 2008 have been dismissed and so is the revision therefrom.

The above two orders are the subject matter of challenge in this petition.

I have heard Sri T.P. Singh, Senior Advocate, assisted by Sri Lokendra Kumar on behalf of the petitioner and Sri Rahul Mishra, learned counsel appearing for the respondents both of whom agreed for the disposal of the writ petition at the very outset as only a legal aspect divorced of any factual dispute, is involved in the petition.

The submission of Sri Singh is that the petitioner had entered into an agreement to sell dated 16.2.1976 so as to purchase the house from the previous owner Smt. Mithana Devi and therefore, his status in the said house has ceased to be that of a tenant. The decree of eviction passed against him treating him to be a tenant as such is a nullity and cannot be executed.

Sri Rahul Mishra, has opposed the above argument by contending that the suit has been decided on the basis of relationship of landlord and tenant. The agreement to sell is unregistered and has been set up belatedly to sabotage the decree.

There is no dispute between the parties that Smt. Mithana Devi was the previous owner and landlord of the house in question. She had transferred it in favour of the respondents by registered sale deed on 24.5.1982. She died on 24.10.1983.

The petitioner, a tenant in the said house is only claiming rights therein on the basis of an unregistered agreement to sell dated 16.2.1976.

Section 54 of the Transfer of Property Act, 1882 in unequivocal terms provide that a contract of sale by itself would not create any interest or charge on the property. Therefore, petitioner on the basis of the aforesaid agreement to sell does not acquire any right, interest or title in the house in question.

Counsel for the petitioner to augment his argument that in view of the aforesaid agreement to sell the status of tenant has changed is drawing support from the decisions of the Supreme Court in the case of Imambi Vs. Azeeza Bee 2001 (1) ARC 146, Abdul Alin Vs. Sheikh Jamaluddin Ansari and others 1998 (34) ALR 642 (SC) and R. Kanthimathi and another Vs. Mrs. Beatrice Xavier 2002 (1) ARC 101.

In the all the aforesaid three decisions the Apex Court has ruled that the status of the tenant changes to that of a purchaser when an agreement of sell is executed by the owner/landlord in favour of the tenant.

The above proposition of law is sound and is applicable in cases where the execution of the agreement to sell is not disputed or denied but the same would not be attracted where the very existence/execution of the agreement is disputed between the parties and its authenticity is to be established.

The petitioner on the basis of the above agreement to sell dated 16.2.1976 has instituted original suit No.173 of 1985 Ram Pratap Vs. Rammmand and others in the court of Civil Judge, (S.D.) Fatehpur for specific performance of the said agreement. In the said suit respondents have disputed the very execution of the above agreement to sell. This is reflected from paragraph 18 of the written statement of the said suit which has been enclosed as annexure-11 to the petition. It has been stated therein that Smt. Mithana Devi, had never entered into an agreement to sell the above house in favour of the petitioner and that she had not executed any such agreement by taking any advance. It means, the change of status of petitioner from tenant to prospective purchaser is in a cloud unless established in the aforesaid suit or otherwise.

In view of Section 20 of the Specific Relief Act the granting of decree of specific performance of an agreement is discretionary in nature. The agreement to sell is dated 26.2.1976. The suit for specific performance was instituted in 1985 i.e. after about 9 years from the date of execution of the agreement. Even if the suit for specific performance may not be time barred but the delay in its filing may be an important factor for the court to refuse the decree of specific performance and instead to grant the alternative relief of refund of money or payment of compensation. Therefore, the chances of the suit for specific performance of the agreement being ultimately decreed may be bleak.

The agreement to sell appears to have been concocted to avoid eviction persuant to the ex parte decree dated 20.7.1984. It appears to have been arranged in the back date of 26.2.1976 to escape its registration as unregistered agreement to sell is not permissible in U.P.w.e.f.1.1.77 in view of the amendment to Section 54 of the Transfer of Property Act, 1882 vide U.P. Act No.57 of 76.

In view of the above, the decree is not un-executable and the petitioner can not be permitted to install the execution of the eviction decree for the reason that there is an unregistered agreement in his favour and a suit for its specific performance is pending.

The sale dead of the house executed in favour of the respondents is not in dispute and is not under challenge. Simply on the basis of an unregistered agreement to sell dated 26.02.76, he can not be permitted in law and equity to deprive the actual owners and landlords the benefit of decree which stands confirmed in their favour. The decree of the Small Causes Court and the findings recorded there in would not affect then decision of the civil court in the suit for specific performance. This has also been made clear by the High Court in its earlier judgment and order. Admittedly, the petitioner has instituted another suit No.119 of 2006 for declaring the decree dated 20.7.1984 passed by the Small Causes Court as null and void. Therefore it is appropriate for him to wait for decisions of the above suits so as to get his title established and to get the decree declared as nullity whereupon on succeeding possession, if necessary, would be restored to him.

The Petitioner was allowed time upto 31.03.06 to vacate the house by the earlier decision of this court dated 21.7.05 passed in Writ Petition No.8524 of 1985. The petitioner having obtained time to vacate the house from the High Court itself and having furnished an undertaking in the court below to effect that he will handover possession of the house to the landlord on or before 31.3.2006 in all fairness ought to have abided by the same. The tenant in equity must first surrender possession when there is a conclusive decree of eviction against him before setting up his own claim or title in the property.

In view of the above, there is no reason to interfere in the matter at this stage leaving the final rights of the parties as to the nullity of the decree and the ultimate status of the petitioner to be decided in the two suits instituted by him.

The writ petition is devoid of merit and is dismissed.

Order Date :- 24.4.2014

Piyush