Parmanand Kukreja vs Smt. Meera Agrawal
2023 Latest Caselaw 675 MP

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     IN THE HIGH COURT OF MADHYA PRADESH
                       AT GWALIOR
                            BEFORE

    HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL

               FIRST APPEAL No.402 OF 2006

   BETWEEN:-

   PARMANAND KUKREJA S/O SHRI LAXMI
   CHANDRA KUKREJA CASTE-SINDHI, AGED 50
   YEARS,   R/O   HARIPRAKASH       COMPLEX
   SUBHASHGANJ DABRA, DISTT. GWALIOR
   (MADHYA PRADESH)


(BY SHRI VINOD BHARDWAJ - SENIOR ADVOCATE WITH SHRI ANAND
BHARDWAJ- ADVOCATE)
                                                -------APPELANT
  AND

  SMT. MEERA AGRAWAL W/O SHRI MAHESH
  CHANDRA AGRAWAL      ,   AGED   34   YEARS,
  OCCUPATION: NOTHING R/O AT PRE. RAILWAY
  BUNGLOW NO. 112 NEW RAILWAY HOSPITAL
  GIRAJ DISTRICT SANGALI (MAHARASHTRA),
  PERMANENT R/O NEAR         SOCIETY ROAD
  RAILWAY    STATION       GODOWN      DABRA
  DISTRICT GWALIOR THROUGH POWER OF
  ATTORNEY HOLDER-J.P.AGARWAL S/O SHRI
  VIJAY RAM AGARWAL R/O RAILWAY STATION
  NEAR GODOWN SOCIETY ROAD DABRA DISTT.
  GWALIOR (MADHYA PRADESH)
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(BY SHRI K.N. GUPTA - SENIOR ADVOCATE WITH SHRI RINKU SHAKYA -
ADVOCATE)
                                                                    ------ RESPONDENT
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      Reserved on               : 01/12/22
      Delivered on              : 11/01/23


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        This appeal having been heard and reserved for orders, coming
on for pronouncement this day, the Court pronouncement the following:

                                       JUDGMENT

With the consent of both the parties, matter is heard finally.

This first appeal has been preferred by the appellants under Section

96 of Code of Civil Procedure (hereinafter referred to as "CPC") against

the judgment and decree dated 05.10.2006 passed by 1 st Additional District

Judge, Dabra, District- Gwalior (M.P.) in Civil Suit No.16-A/2005,

whereby suit for eviction and arrears of rent filed by the respondent-

plaintiff has been allowed.

2. The appellant is running a footwear shop in the premises in

question. Respondent filed a civil suit for eviction and arrears of rent

against appellant on the ground that appellant has stopped paying rent and

is creating nuisance in the shop.

Appellant filed written statement averring that an agreement was

executed between his mother and power of attorney holder of

respondent Shri J.P. Agrawal to sell the disputed shop on 24/09/2001.

As per the agreement, power of attorney holder-j.p.agarwal on behalf of

respondent-Meera Agarwal had agreed to sell the aforesaid suit shop for

consideration of Rs.9,12,500/- out of which mother of appellant had

paid Rs.62,500/- on the same date. Thereafter, on 28/11/2001, appellant

and his mother had paid Rs.2,50,000/- to power of attorney holder-J.P.

Agarwal total Rs.3,12,500/- was paid by the appellant and possession of

the disputed shop was handed over to the appellant. Thereafter,

appellant used to pay Rs.6000/- per month to the respondent from

December, 2001 to September, 2004 which appellant had noted in his

personal diary. There is no relation of landlord and tenant between the

parties. Plaintiff wants to sell the disputed shop on higher amount to some

other person, therefore, mother of appellant filed objection before Sub-

Registrar Office mentioning that she is always ready and willing for

registration of sale deed in her favour with remaining amount. In this

regard, appellant requested the respondent many times but respondent-

plaintiff declining their request, filed a civil suit against the appellant

claiming that appellant is tenant at the rate of Rs.6,000/- per month.

Appellant paid rent upto 30.09.2003 and thereafter stopped paying rent

from 1st October, 2003 and despite demand appellant has not paid rent and

is creating nuisance for which notices have been given to him but despite

receiving notice, appellant has not paid rent, therefore, plaintiff was forced

to file civil suit for eviction and arrears of rent . The aforesaid suit was

decreed in favour of plaintiff vide judgment and decree dated

05.10.2006 passed by 1 st Additional Sessions Judge, Dabra, District-

Gwalior (M.P.) in Civil Suit No.16-A/2005. Assailing the said judgment

and decree, present appeal has been filed.

It is submitted by learned counsel for the appellant that there is no

landlord tenant relationship exits between the parties. O nly with

intention to purchase the disputed property, he occupied the same.

Appellant is always ready and willing to pay the sale consideration but the

landlord did not come forward to receive sale consideration and execute

the sale deed. Hence, prays for allowing present appeal setting aside the

impugned judgment.

Learned counsel for respondent while supporting the finding

recorded by the court below under impugned judgment submits that the

impugned judgment does not warrant any interference and the findings

recorded therein are based on the evidence came on record. Hence, prays

for dismissal of the present appeal.

This Court is required to see whether trial Court has appreciated

the evidence came on record in proper perspective and rightly dismissed

civil suit of appellant.

The power of attorney holder-J.P. Agarwal on the basis of

unregistered power of attorney of respondent executed an agreement to

sell the disputed shop for consideration of Rs.9,12,500/-. At the time of

execution of agreement J.P. Agarwal on behalf of respondent No.1 got

Rs.62,500/- and thereafter Rs.2,50,000/-. Respondent No.1 got total

Rs.3,12,500/-. It was agreed that remaining amount would be paid by

30/10/2004. In the meantime, appellant will pay Rs.6,000/- per month

by way of interest for remaining consideration of Rs.6,00,000/- which

was to be started from 01/10/2001. It was further decided that up to

31/10/2004, appellant/plaintiff after giving remaining consideration

amount of Rs.6,00,000/- will get the shop by registered sale deed in her

name.

Power of attorney holder-J.P.agarwal has stated that respondent is

his daughter-in-law who has appointed him as power of attorney on

19.09.2005. Disputed shop was rented out to the appellant @ Rs.6000/-

per month infront of Satish Agarwal and Natthiram Agarwal and

possession was handed over to the appellant. Appellant paid rent upto

30.09.2003 and thereafter stopped paying rent from 1 st October, 2003 and

despite demand he has not paid rent and is creating nuisance for which

notices have been given to him but despite receiving notice, he has not

paid rent.

During cross-examination, he has stated that the aforesaid shop was

purchased by Meera on 01.03.2001 by registered sale-deed who has

executed power of attorney in his favour.

Appellant in para No.13 of cross-examination has admitted that in

lieu of consideration amount of Rs.9,20,000/- on behalf of his mother, he

used to pay Rs.6000/- per month from December, 2001 to September,

2004.

It is the contention of the counsel for the appellant/ defendant that

once his mother had entered into the Agreement to Sell with the plaintiff,

the relationship of landlord and tenant does not exist and the possession of

the appellant / defendant of the property would not be as a tenant and the

defendant was under no liability to pay the rent.

The possession of appellant, in the event of the agreement to sell not

fructifying into a sale, would be as an agreement purchaser, not protected

by law and liable to be returned. An agreement purchaser has right in the

property agreed to be purchased only when a decree for specific

performance of the said agreement is passed and the conveyance deed in

pursuance thereto is executed, but in the present case, an agreement to sell

in respect of the premises in question was executed by the power of

attorney holder of plaintiff in favour of the appellant on 24.09.2001 and on

28.11.2001 vacant possession of the said shop was handed over to the

appellant. Here it is relevant to state that effect of execution of the said

agreement to sell shall be dealt with by the court in a separate proceedings

for specific performance of contract, but it is sufficient here to state that in

terms of the pleadings as well as evidence of the parties, learned court

below has held that it is established that defendant had been inducted into

the premises in question by the plaintiff as tenant, and hence there has

been a relationship of landlord and tenant between the parties..

It is settled law that in the case of immovable properties, the title is

not transferred only on the basis of agreement to sell. The title is

transferred only by registered sale deed. In the present case, till the suit for

specific performance is allowed and documents of transfer of title are

executed between the parties in the form of sale deed or otherwise, the

status of the appellant shall only be of a tenant and he shall be liable to

pay rent. Hence, there is no merit in the contention of the counsel for the

appellant that there is no relationship of landlord and tenant between the

parties, after the execution of the agreement to sell dated 24.09.2001 and

the tenant was not under liability to pay rent.

The status of the appellant as a tenant is different from his status as

purchaser of the property in question. If the process of the purchase of the

property in question by the defendant from the plaintiff is initiated, then it

is important to note that till the time said process reaches its logical

conclusion in the form of sale deed in favour of the defendant, the status

of the appellant shall only remain as that of a tenant, because in such cases

there may be breach of contract by either of the parties and then it is the

court which has to decide as to whether allow proceedings for specific

performance of the contract or grant damages to the party to which loss

has occurred due to breach of contract by the other, and till the suit for

specific performance filed by the appellant in the Court is decreed in his

favour and necessary documents for transfer of title are executed between

the parties, the appellant shall remain a tenant.

The ground taken by the defendant for non-payment of rent was

execution of the agreement to sell dated 24.09.2001 executed by the

plaintiff in favour of the appellant but it has been discussed above that

execution of the said agreement to sell by itself would not be a ground for

the appellant not to pay rent till the time the title of the property passes to

the appellant as per law. Moreso, mother of the appellant has not been

examined by the defendant who may be a best witness to reveal the

credibility of the agreement especially when there is absence of receipt of

amount of sale consideration.

In view of above, this court is of the considered opinion that trial

Court has not committed any error in passing the impugned judgment,

therefore, no interference is warranted in the impugned judgment and

the appeal sans merit is, hereby dismissed.

(DEEPAK KUMAR AGARWAL) JUDGE

ojha Digitally signed by YOGENDRA OJHA Date: 2023.01.11 17:25:19 +05'30'