[Cites 12, Cited by 0]
Bombay High Court
Nazim Shaikh Hasan vs Jainbi Mushtaq Shaikh (Deceased) Thr. ... on 1 April, 2026
2026:BHC-AS:15387
Neeta Sawant CRA 280 of 2024
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
CIVIL REVISION APPLICATION NO. 280 OF 2024
Nazim Shaikh Hasan .....APPLICANT
: VERSUS :
Janbi Mustaq Shaikh (since deceased through LRs). ....RESPONDENT
Mr. Avinash B. Avhad (through V.C.) with Mr. Sachin Gawade, for the
Applicants.
Mr. Rajesh More, for the Respondents.
CORAM : SANDEEP V. MARNE, J.
JUDG. RESD. ON: 18 MARCH 2026.
JUDG. PRON. ON: 01 APRIL 2026
JUDGMENT:
1) The Applicant has filed the present Revision Application
challenging the judgment and order dated 24 November 2023 passed by
the District Court, Pune dismissing Regular Civil Appeal No. 625/2015
and confirming the judgment and order dated 19 September 2015 passed
by the Small Causes Court decreeing Civil Suit No. 384 of 2010 and
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directing the Applicant-Defendant to handover vacant possession of the
suit premises to the Plaintiff-Respondent.
2) A shop on the ground floor of the building admeasuring 200
sq.ft. bearing House No.3031, S.No.51, Mitha Nagar, in front of
Vishwakarma Building, Kondhwa Khurd, Pune are the 'suit premises'.
Plaintiff is the owner of the suit premises who has let out the same to the
Defendant for the business of grocery and stationery articles for monthly
rent of Rs.1,500/-. It appears that during currency of tenancy, Plaintiff
agreed to sell the suit premises to the Defendant for consideration of
Rs.1,90,000/- and accordingly, an Agreement for Sale was executed on 21
September 2004. Out of the agreed consideration, Defendant paid amount
of Rs.40,000/- to the Plaintiff towards earnest money and remaining
amount of Rs.1,50,000/- was to be paid within 3 months. According to the
Plaintiff, Defendant failed to comply with the terms of the Agreement and
did not pay remaining sum of Rs. 1,50,000/- and that therefore, the
transaction of sale deed did not fructify, and Defendant continued as a
tenant in respect of the suit premises.
3) Plaintiff alleged default in payment of rent on behalf of the
Defendant. Plaintiff also expressed bona fide requirement in respect of
the suit premises. Plaintiff also raised allegation of change of use in
respect of the suit premises. Plaintiff issued notice dated 21 July 2010
demanding possession of the suit premises and thereafter filed Civil Suit
No. 384 of 2010 in the Court of Small Causes at Pune on 28 September
2010. The Defendant resisted the suit by filing Written Statement
questioning the quantum of rent. Defendant raised contention of
landlord-tenant relationship coming to an end upon execution of
Agreement for Sale. It was contended that Defendant has paid amount of
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Rs.90,000/- to the Plaintiff and was ready and willing to pay balance
amount of Rs.1,00,000/-. Defendant prayed for dismissal of the suit.
4) Based on the pleadings, the Trial Court framed issues
relating to allegation of default in payment of rent, existence of landlord-
tenant relationship, bona fide requirement, change of user etc. Parties led
evidence in support of their respective claims. After considering the
pleadings, documentary and oral evidence, the Trial Court proceeded to
decree the Suit by judgment and order dated 19 September 2015 by
holding that landlord-tenant relationship continued even after execution
of the Agreement for Sale. The Trial Court upheld bona fide requirement
of the Plaintiff and held that Plaintiff would suffer greater hardship. The
issue of change of user was also decided in favour of the Plaintiff.
However, the ground of default in payment of rent was rejected.
Accordingly, Defendant was directed to handover vacant possession of
the suit premises to the Plaintiff by decree dated 19 September 2015.
5) Defendant filed Regular Civil Appeal No. 625 of 2015 before
the District Court, Pune challenging the judgment and decree of the Trial
Court. During pendency of the Appeal, the Appellate Court fixed the
interim compensation in respect of the suit premises and directed the
Defendant to deposit the same. By judgment and order dated 24
November 2023, the Appellate Court has proceeded to dismiss Regular
Civil Appeal No. 625 of 2015 preferred by the Applicant. The Applicant
has accordingly filed the present Revision Application challenging the
decisions of the Trial and the Appellate Courts. By order dated 26 June
2024, this Court issued notice in the Revision Application and stayed the
execution of the eviction decree. Respondent/Plaintiff has appeared in the
Revision Application. With the consent of the learned counsel appearing
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for the parties, the Revision Application is taken up for hearing and final
disposal.
6) Mr. Avhad, the learned counsel appearing for the Revision
Applicant submits that the Trial Court has grossly erred in decreeing
Plaintiff's Suit ignoring the position that the landlord-tenant relationship
had come to an end with Agreement for Sale dated 21 September 2004.
That upon execution of the said Agreement, tenancy came to an end and
Defendant remained in possession of the suit premises as a prospective
purchaser. That possession of the suit premises post 21 September 2004
was towards part performance of the Agreement for Sale under Section
53A of the Transfer of Property Act, 1882 (Transfer of Property Act). That
the Small Causes Court did not have jurisdiction to entertain the suit of
the Plaintiff who ought to have filed suit before the Civil Court for
recovery of possession granted towards part performance of Agreement
for Sale. That it was necessary to secure a declaration from the Civil
Court that the Agreement was terminated. He submits that provisions of
Section 17(1A) of the Registration Act, 1908 (Registration Act) have no
application in the facts and circumstances of the present case, where
execution of Agreement for Sale is not under dispute.
7) In support of his contention that execution of Agreement for
Sale by a landlord in favour of a tenant brings the tenancy to an end, Mr.
Avhad relies on judgment of the Apex Court in R. Kanthimathi and other
vs. Mrs. Beatrice Xavier1. On above broad submissions, Mr. Avhad would
pray for setting aside the impugned eviction decree.
AIR 2003 SC 4149
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8) The Application is opposed by Mr. More, the learned counsel
appearing for the Respondent-Plaintiff. He submits that the provisions of
Registration Act have been amended by insertion of sub-section (1A) in
Section 17 from 24 September 2001, under which Agreement for Sale of
immovable property is required to be registered for the purpose of
application of provisions of Section 53A of the Transfer of Property Act.
That sub-section (1A) of the Registration Act specifically provides that if
the agreement is not registered, the same cannot have effect for the
purpose of Section 53A of the Transfer of Property Act. He submits that
in the present case, the Agreement for Sale dated 21 September 2004 is an
unregistered document. That since the same is executed after introduction
of sub-section (1A) in Section 17 of the Registration Act, the same is
irrelevant for the purpose of application of provisions of Section 53A of
the Transfer of Property Act. That in any case, mere execution of
Agreement for Sale does not bring to an end the landlord-tenant
relationship. He relies on judgment of the Apex Court in H.K. Sharma vs.
Ram Lal 2, which distinguishes the judgment in R. Kanthimathi (supra).
Mr. More would take me through the Agreement for Sale in support of
his contention that the Agreement was executed subject to condition of
sanction of loan in favour of the Defendant and in the event of non-
sanction of loan, the transaction stood automatically cancelled and
possession of Defendant continued as a tenant.
9) Mr. More would further submit that both the Courts have
concurrently recorded findings about existence of landlord-tenant
relationship despite execution of Agreement for Sale. That no
interference is warranted in such concurrent findings in exercise of
revisionary jurisdiction of this Court under Section 115 of the Code of
(2019) 4 SCC 153
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Civil Procedure, 1908. He would pray for dismissal of the Revision
Application.
10) Rival contentions of the parties now fall for my
consideration.
11) The only issue urged by Mr. Avhad in support of the
challenge to the concurrent findings recorded by the Trial and Appellate
Court is that the landlord-tenant relationship came to an end upon
execution of Agreement for Sale dated 21 September 2004. It is contended
on behalf of the Applicant/Defendant that upon execution of the
Agreement for Sale, the possession of the suit premises no longer
continued in capacity as tenant and that the tenancy has come to an end.
It is suggested that possession of the suit premises by the Defendant
continued as a prospective purchaser under Section 53-A of the Transfer
of Property Act.
12) In support of the contention of tenancy coming to an end with
execution of Agreement for Sale, Mr. Avhad has strenuously relied upon
judgment of the Hon'ble Apex Court in R. Kanthimathi in which the issue
framed for consideration is captured in para-1 of the judgment as under :
1. Heard learned counsel for the parties. The question raised in this
appeal is an interesting question and of some importance. The question
is: "Whether on the execution of agreement to sell, by the landlord with
the tenant and landlord having received substantial portion of the sale
consideration, the relationship of landlord-tenant inter se between
them ceases and fresh rights and obligations flows under this
agreement?"
13) The Apex Court has answered the issue by holding in paras-4
and 5 of the judgment in R. Kanthimathi as under:
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4. The question for consideration is, whether the status of tenant as such
changes on the execution of an Agreement of Sale with the landlord. It is
relevant at this junction first to examine the terms of the agreement of sale.
The relevant portions of the Agreement of Sale record the following:
"I, the aforesaid, Mrs Beatrice Xavier hereby agree out of my own free will,
to sell, convey and transfer the property to you Mrs R. Kanthimathi, wife
of Mr S. Ramaswami, 435 Trichy Road, Coimbatore for a mutually agreed
sale consideration of Rs. 25,000.
I shall be proceeding to Coimbatore and shall execute the sale deed and
present the same for admission and registration before the registration
authority, accepting and acknowledge payment of the balance of
consideration of Rs. 5000 (Rupees five thousand only) at the time of
registration and shall complete the transaction of sale and conveyance as
the property demised has already been surrendered to your possession."
5. Submission for the tenant is after entering into the agreement, the landlady
accepted Rs. 20,000 confirming delivery of possession in this context which
already constitutes the clear intent of the landlady of entering into a new
relationship with the tenant under it. On the other hand, learned counsel for
the respondent submits that the words "already been surrendered" therein,
only refer to the existing possession of the tenant and nothing more. So far as
this submission for the respondent is concerned we have no hesitation to
reject the same. The reference of the words "already been surrendered" has
been incorporated with consciousness. This is to be construed in the
background of the landlady having received a major amount of sale
consideration and as normally, if a substantial sum is received by the seller,
the purchaser is put in possession of the property hence to fall in the same
lines the said words were used to confirm this possession in this context. There
could be no other reason to record therein as such. Even if it be said to refer to
the possession as a tenant the reassertion in the agreement of sale is only for
the purpose of denoting possession given in pursuance of this agreement of
sale.
(emphasis and underlining added)
14) However, the judgment in R. Kanthimathi is rendered in
peculiar facts, where out of agreed consideration of Rs. 25000, amount of
Rs. 20,000 was already paid and the possession was accordingly
transferred with intention of brining to an end the tenancy. Also, the
Agreement specifically recorded that ' the property demised has already
been surrendered in your possession '. In the light of such factual
situation, the Hon'ble Apex Court construed the expression 'already been
surrendered' used in the Agreement to mean that the purchaser was put
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in possession of the property upon receipt of major amount of sale
consideration and that therefore the possession was required to be
construed as the one given in pursuance of the Agreement for Sale. The
judgment is clearly distinguishable in the facts of the case where out of
consideration of Rs. 1,90,000, only an amount of Rs. 40,000 was paid and
there is nothing on record to infer that the landlady has surrendered
possession with intention of bringing the tenancy to an end. The
judgment of the Apex Court in R. Kanthimathi cannot be cited in support
of an abstract proposition that in every case where Agreement for Sale is
executed, the landlord-tenant relationship comes to an end. A judgment
is an authority for what it decides and not what can be logically deduced
therefrom. [SEE: Commissioner of Customs (Fort) vs. Toyota Kirloskar
Motor (P) Ltd.3, Secunderabad Club v. CIT4]. I am therefore unable to
apply the ratio of the judgment in R. Kanthimathi to the facts of the
present case where there was no intention between the parties to bring
the landlord-tenant relationship to an end by execution of the Agreement
for Sale.
15) Also, the judgment in R. Kanthimathi has been subsequently
explained by the Apex Court in H.K. Sharma (supra) in which similar
issue was framed for consideration in para-22 of the judgment, which
reads thus :
22. The question, which arises for consideration in these appeals, is when the
lessor and the lessee enters into an agreement for sale/purchase of the
tenanted premises where the lessor agrees to sell the tenanted premises to his
lessee for consideration on certain conditions, whether, as a result of entering
into such agreement, the jural relationship of lessor and the lessee in relation
to the leased property comes to an end and, if so, whether it results in
determination of the lease.
(2007) 5 SCC 371
2023 SCC Online SC 1004
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16) The Apex Court has answered the issue by holding in para 30
to 33 of the judgment in H.K. Sharma as under:
30. A fortiori, the parties did not intend to surrender the tenancy rights despite
entering into an agreement of sale of the tenanted property. In other words, if
the parties really intended to surrender their tenancy rights as contemplated
in clauses (e) or (f) of Section 111 of the TP Act while entering into an
agreement to sell the suit house, it would have made necessary provision to
that effect by providing a specific clause in the agreement. It was, however,
not done. On the other hand, we find that the conditions set out in the
agreement do not make out a case of express surrender under clause ( e) or
implied surrender under clause (f) of Section 111 of the TP Act.
31. It is for this reason, the law laid down by this Court in R. Kanthimathi [R.
Kanthimathi v. Beatrice Xavier, (2000) 9 SCC 339] has no application to the
facts of this case and is, therefore, distinguishable on facts. Indeed, it will be
clear from mere perusal of para 4 of the said decision quoted hereinbelow:
(SCC p. 341)
"4. As aforesaid, the question for consideration is, whether the
status of tenant as such changes on the execution of an agreement of
sale with the landlord. It is relevant at this junction first to examine the
terms of the agreement of sale. The relevant portions of the agreement
of sale record the following:
'I the aforesaid Mrs Beatrice Xavier hereby agree out of my own
free will, to sell, convey and transfer the property to you Mrs R.
Kanthimathi wife of Mr S. Ramaswami, 435 Trichy Road, Coimbatore
for a mutually agreed sale consideration of Rs 25,000.
I shall be proceeding to Coimbatore and shall execute the sale deed
and present the same for admission and registration before the
Registering Authority, accepting and acknowledge payment of the
balance of consideration of Rs 5000 (Rupees five thousand only) at the
time of registration and shall complete the transaction of sale and
conveyance as the property demised has already been surrendered to
your possession.'"
(emphasis in original)
The words highlighted in italics of the agreement were construed by their
Lordships for holding that these italicised words in the agreement clearly
indicate that the parties had really intended to surrender their tenancy rights
on execution of the agreement of sale and bring to an end their jural
relationship of the landlord and tenant.
32. As observed supra, such is not the case here because we do not find any
such clause or a clause akin thereto in the agreement dated 13-5-1993 and nor
we find that the existing conditions in the agreement discern the intention of
the parties to surrender the tenancy agreement either expressly or impliedly.
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33. In the light of the foregoing discussion, we are of the considered opinion
that the tenancy in question between the parties did not result in its
determination as contemplated under Section 111 of the TP Act due to
execution of the agreement dated 13-5-1993 between the parties for sale of the
suit house and the same remained unaffected notwithstanding execution of the
agreement dated 13-5-1993
(emphasis added)
17) Thus, in H.K. Sharma, the Apex Court has explained and
distinguished the judgment in R. Kanthimathi by holding that the
Agreement in R. Kanthimathi clearly indicated that the parties had
intended to surrender their tenancy rights on execution of the agreement
for sale and that the same was done to bring to an end their jural
relationship as landlord and tenant. However, in the Agreement dated 13
May 1993 involved in H.K. Sharma, there was no such stipulation, and the
Supreme Court did not discern the intention of the parties to surrender
the tenancy agreement either expressly or impliedly. In the present case
also, the Agreement for Sale does not create any impression that the
parties intended to bring to an end their jural relationship as landlord-
tenant. Defendant did not express intention to surrender the tenancy and
acquire possession as purchaser of the property. In my view therefore,
the ratio of the judgment of the Apex Court in H.K. Sharma appears to be
closer at home than the ratio of the judgment in R. Kantimathi.
18) Also, the judgments H.K. Sharma and R. Kantimathi are
rendered in the context of execution of Agreements for Sale before
amendment of Section 17 of the Registration Act. Section 17 of the Act
has been amended w.e.f. 24 September 2001 by introduction of sub-
section (1A) therein. Sub-section (1A) of Section 17 of the Registration
Act provides thus:
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(1A) The documents containing contracts to transfer for consideration, any
immovable property for the purpose of section 53A of the Transfer of Property
Act, 1882 (4 of 1882) shall be registered if they have been executed on or after
the commencement of the Registration and Other Related laws (Amendment)
Act, 2001 (48 of 2001) and if such documents are not registered on or after such
commencement, then, they shall have no effect for the purposes of the said
section 53A.
19) Thus, if the Agreement for Sale executed after introduction
of Section 17(1A) is not registered, the same cannot be considered for the
purpose of application of Section 53A of the Transfer of Property Act. In
the present case, Agreement for Sale is executed on 21 September 2004
i.e., after introduction of Section 17(1A) and the same is not a registered
instrument. In that view of the matter, Defendant cannot claim the
benefit of possession towards part performance under Section 53A of the
Transfer of Property Act.
20) Thus, both on the grounds of the ratio of the judgment in
H.K. Sharma as well as application of provisions of Section 17(1A) of the
Registration Act, the jural relationship of landlord and tenant continued
even after execution of Agreement for Sale dated 21 September 2004. I
am therefore not inclined to interfere in the concurrent findings recorded
by the Trial and the Appellate Court on the issue of existence of landlord-
tenant relationship.
21) So far as the eviction on the grounds of bona fide
requirement and change of user is concerned, Mr. Avhad has not
canvassed any submissions before me. Perusal of the Memo of Revision
Application also indicates that no specific grounds are raised questioning
concurrent findings on the issues of bona fide requirement and change of
user.
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22) Considering the overall conspectus of the case, I am unable
to trace any jurisdictional error in the concurrent findings recorded by
the Trial and the Appellate Courts. Revision Application is devoid of
merits. It is accordingly dismissed. However, considering the facts and
circumstances of the case, there shall be no order as to costs.
[SANDEEP V. MARNE, J.]
23) After pronouncement of the judgment, the learned counsel
appearing for the Applicant seeks continuation of interim stay of 4
weeks. The request is opposed by the learned counsel appearing for the
Respondent. Considering the nature of observationss made in the
judgment, the request for continuation of stay is accordingly rejected.
Digitally
signed by
NEETA
NEETA SHAILESH
SHAILESH SAWANT [SANDEEP V. MARNE, J.]
SAWANT Date:
2026.04.01
16:22:13
+0530
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