Rajasthan High Court

Shyam Sunder Malpani S/O Late Shri ... vs Shyam Lal Sharma S/O Late Shri ... on 13 April, 2022

Bench: Mahendar Kumar Goyal

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

                 S.B. Civil Writ Petition No. 1471/2020
Shyam Sunder Malpani S/o Late Shri Shimbhu Malpani, Aged
About 61 Years, R/o Near State Bank, Behind Vasuwala Mandir,
Choudhary Pada, Karauli, Tehsil And District Karauli (Raj.)
                                                                       ----Petitioner
                                    Versus
Shyam Lal Sharma S/o Late Shri Dwarika Prasad Sharma, Aged
About 71 Years, R/o Chatikana, Karauli, Tehsil And District
Karauli (Raj.)
                                                                   ----Respondent

For Petitioner(s)         :     Mr. R.K. Daga with
                                Mr. Rahul Sirsa Chouhan
For Respondent(s)         :     Mr. J.P. Goyal Sr. Adv. assisted by
                                Mr. Hari Krishna Sharma
                                Ms. Jyoti Swami



      HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

                                     Order

13/04/2022

This writ petition under Article 227 of the Constitution of

India is preferred assailing the legality and validity of the

judgment and certificate of possession dated 16.12.2019 passed

by learned Appellate Rent Tribunal, Karauli in RCA Appeal

no.3/2019 dismissing the appeal against the order dated

10.12.2018 passed by learned Rent Tribunal, Karauli in Rent

Tribunal Case No.3/2010 whereby recovery certificate was issued

in favour of the respondent in his petition filed under Section 9 of

Rajasthan Rent Control Act, 2001.

The facts in brief, as revealed from the memo of writ

petition, are that the respondent-applicant filed the petition under

(2 of 5) [CW-1471/2020]

Section 9 of the Act of 2001 seeking eviction of the petitioner from

the suit premises on the grounds of default, reasonable and

bonafide necessity, material alteration and denial of title. In his

reply, the petitioner claiming his ownership over the subject

property on the strength of a sale agreement dated 22.09.1997

executed by the respondent in his favour, averred that no

relationship of landlord and tenant exists in between them. The

learned Rent Tribunal, vide its judgment dated 10.12.2018,

allowed the petition on the grounds of default, denial of title and

reasonable and bonafide necessity which was unsuccessfully

challenged by the petitioner by way of an appeal which came to be

dismissed by the learned Appellate Rent Tribunal vide its judgment

dated 16.12.2019.

The sole contention advanced by the learned counsel for the

petitioner is that in view of recital in the sale agreement dated

22.09.1997 to the effect that title of the subject property stands

transferred in favour of the purchaser, the petitioner, he became

absolute owner of the property in question and hence, relation of

landlord and tenant ceased to exist thereafter. He submitted that

the learned Rent Tribunal has gravely erred in failing to appreciate

this aspect of the matter. He, in support of his submission, relies

upon judgments of the Hon'ble Apex Court of India in case of

Arjunlal Bhatt Mall Gothani & Ors. Vs. Girish Chandra Dutta

& Anr.: 1973 (2) SCC 197, R. Kanthimathi & Anr. Vs.

Beatrice Xavier (Mrs): 2000 (9) SCC 339 and Rajendra

Tiwary Vs. Basudeo Prasad & Anr. AIR 2002 SC 136, a

judgment of this Court in case of Sanwar Lal Rai Vs. Appellate

Rent Tribunal, Jaipur & Anr.: 2013(3) CDR 1212 (Raj.), and

(3 of 5) [CW-1471/2020]

a judgment of Hon'ble Karnataka High Court in case of M.T.

Naravanagowda Vs. Smt. Machamma: 2005 (2) RCR 681.

Per contra, learned Senior Counsel for the respondent

submitted that it is trite law that an agreement to sale neither

creates nor extinguishes substantial right in the immovable

property. He submitted that in view of admitted position that the

petitioner has claimed himself to be owner of the subject property

on the strength of a sale agreement, the learned Rent Tribunal has

committed no error in deciding the issue of denial of title in his

favour. He, in support of his submission relies upon an Apex Court

judgment in case of Suraj Lamp & industries Pvt. Ltd. Vs.

State of Haryana & Anr.:2011 DNJ (SC) 1058.

Heard. Considered.

It is trite law that an agreement of sale does not create a

title in favour of its purchaser which can be effected only in terms

of Section 54 of the Transfer of Property Act, 1882, i.e., by way of

a registered sale deed if value of the immovable property is ₹ 100

or upwards. A three Judges bench of the Hon'ble Apex Court of

India in Suraj Lamp & Industries Pvt. Ltd. (supra), held as

under:

"11. Section 54 of TP Act makes it clear that a contract of sale, i.e., an agreement of sale does not, of itself, create any interest in or charge on such property. This Court in Narandas Karsondas Vs. S.A. Kamtam & Anr., (1977) 3 SCC 247, observed:

A contract of sale does not of itself create any interest in, or charge on, the property. This is expressly declared in Section 54 of the Transfer of Property Act. (See Rambaran Prasad Vs. Ram Mohit Hazra, (1967) 1 SCR 293). The fiduciary character of the personal obligation created by a contract for sale is recognised in Section 3 of the Specific Relief Act, 1963, and in Section 91 of the Trusts Act. The personal obligation created by a contract of sale is described in Section 40 of the Transfer of Property Act as an obligation arising out of Contract and annexed to the ownership

(4 of 5) [CW-1471/2020]

of property, but not amounting to an interest or easement therein."

In India, the word 'transfer' is defined with reference to the word 'convey'. The word 'conveys' in Section 5 of Transfer of Property Act is used in the wider sense of conveying ownership... ... that only on execution of conveyance ownership passes from one party to another..."

In Rambhau Namdeo Gajre Vs. Narayan Bapuji Dhotra, (2004) 8 SCC 614 this Court held:

"Protection provided under Section 53A of the Act to the proposed transferee is a shield only against the transferor. It disentitles the transferor from disturbing the possession of the propsed transferee who is put in possession in pursuance to such an agreement. It has noting to do with the ownership of the proposed transferor who remains full owner of the property till it is legally conveyed by executing a registered sale deed in favour of the transferee. Such a right to protect possession against the proposed vendor cannot be pressed in service against a third party."

It is thus clear that a transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of a deed of conveyance (duty stamped and registered as required by law), no right, title or interest in an immovable property can be transferred.

12. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of Sections 54 and 55 of TP Act and will not confer, any title nor transfer any interest in an immovable property (except to the limited right granted under Section 53A of TP Act). According to TP Act, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of TP Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter."

In view of the admitted position that the petitioner has

claimed himself to be owner of the suit premises on the strength

of an agreement of sale dated 29.10.1997, in the considered

opinion of this Court, the learned Appellate Rent Tribunal has

committed no error in allowing the petition on the ground of denial

to title amongst others.

(5 of 5) [CW-1471/2020]

In none of the judgments relied upon by the learned counsel

for the petitioner, the question was as to whether an agreement of

sale deed bestows ownership upon the purchaser. Rather, the

question was existence of relationship of landlord and tenant in

between the parties after execution of an agreement of sale in