The High Court
Case Details
-1- S.A. No. 73 of 2014 IN THE HIGH COURT OF JHARKHAND AT RANCHI S.A. No. 73 of 2014 Ashok Kumar Agarwal ..... Versus … Appellant/Appellant/Defendant Nakul Sao @ Nakul Prasad Jaiswal ..... … Respondent/Respondent/Defendant CORAM : HON’BLE MR. JUSTICE SANJAY KUMAR DWIVEDI -------- ------ For the Appellant For the Respondent : Mr. Sudhir Kumar Sharma, Advocate. : Mr. Sachin Kumar, Advocate. : Ms. Surbhi, Advocate. ------ 28/ 31.07.2023 Heard Mr. Sudhir Kumar Sharma, learned counsel appearing for the appellant and Mr. Sachin Kumar along with Ms Surbhi, learned counsel appearing for the respondent. 2. This second appeal has been filed being aggrieved and dissatisfied with the judgment dated 15.04.2014 and the decree signed on 29.04.2014, passed in Title Eviction Appeal No. 03 of 2012, by the Principal District Judge, Simdega, whereby, he has been pleased to
Legal Reasoning
dismiss the appeal by way of affirming the judgment dated 04.01.2012 and the decree signed on 12.01.2012, passed in Title Eviction Suit No. 04 of 2009, by the learned Munsif, Simdega, the appellant herein has preferred this second appeal. 3. The Title Eviction Suit No. 04 of 2009 was instituted by the respondent herein for eviction of the appellant from the property in question. The said suit was decreed in favour of the plaintiff-respondent. The appellant herein has preferred an appeal before the learned Principal District Judge, Simdega in Title Eviction Appeal No. 03 of 2012. 4. The plaintiff-respondent has instituted the suit contending inter alia that he is the owner landlord of the suit premises measuring an area of 3.5 decimal along with the house situated bearing Plot No. 794 under Khata No. 102 situated at Mauza-Simdega PS District-Simdega and the Defendant is the month to months tenant of the of monthly rental of Rs. 600/- only payable according to English Calendar on or before 7th of each subsequent month. The defendant had defaulted in payment of rent since May 1997 all the date of filing the suit Moreover, the Plaintiff has also required the suit premises for his personal necessity of doing business of stationary goods to earn livelihood for himself and his family -2- S.A. No. 73 of 2014 members for which he has already arranged funds. Further case of the Plaintiff is that the Defendant with malafide intention and mischievous design instituted the TS No. 12/06 before the learned Sub-Judge, Simdega against the Plaintiff for a decree of Specific Performance of Contract for sale with regard to the Suit premises and the matter went up to the court of learned District Judge but the Judgment and order with regard to Specific Performance of Contract for Sale would not in any way be an impediment to the Plaintiff in claiming of a decree of eviction of the Defendant on the ground of default of payment of rent as well as on the ground of personal necessity. It has been further stated that no doubt the defendant has defaulted in payment of rent since May 1997 but the Plaintiff can only claim the arrears of rent of three years prior to the institution of the case as other arrears of the rent became barred by the law of limitation as such the Plaintiff only claims the arrears of rent 21600/- from May 2006 to April, 2009 as arrears of rent. The Plaintiff requested the Defendant several times for payment of rent and to vacate the suit premises but he did not pay any heed, hence this suit. 5. The defendant’s case is that defendant appeared and filed written statement stating therein that the plaintiff has no cause of action for the instant suit and the suit is not maintainable as framed. The suit is barred by law of Limitation and also by Specific Relief Act. The defendant fully denied the relationship of landlord and tenant between the parties by stating that the Plaintiff had executed the agreement for the suit premises in favour of the defendant on 1.5.1997 on receiving Rs. 2,25,000/- out of the consideration money of Rs. 2,50,000/-, for which, the Title Suit No.12/2006 has been instituted by the Defendant for Specific Performance of Contact for sale against plaintiff before the Sub Judge - Simdega as the Plaintiff has failed to perform his part of contract. Thereafter, the Plaintiff preferred an appeal bearing Title Appeal No. 4/2007 before the learned District Judge Simdega, in which, the order U/s 89 CPC had been passed with direction to the Plaintiff to execute the registered sale deed in favour of the defendant on or before 31st December, 2008 after getting of Rupees one lakh fifty thousand but he failed to do so even after several requests made by the Defendant and instituted the instant frivolous and vexatious eviction suit to frustrate the -3- S.A. No. 73 of 2014 order or the Judgment. Moreover, the suit is under valued and the suit cannot be proceeded without payment of advolerum court fee on the market value of the suit premises. It is further stated that the Plaintiff is not entitled to get any relief or reliefs as prayed and the suit is fit to be dismissed. 6. This second appeal was admitted by order dated 17.09.2014 on the following substantial question of law:- “1. Whether learned Lower Appellate Court has seriously erred in law in affirming the judgment and decree of the Trial Court, whereby the eviction suit has been decreed, completely ignoring the compromise decree dated 30th August, 2008 passed in T.A. No.4 of 2007 (Ext.1)? 2. Whether learned Lower Appellate Court, while affirming the judgment and decree of the Trial Court, has failed to appreciate that from the date of delivery of possession by the plaintiff in part performance of the agreement dated 1st May, 1997 (Ext. A) the present appellant had ceased to be a tenant and he was not supposed have to pay rent from that date and he should not have been considered as a defaulter?” 4.
Legal Reasoning
Mr. Sudhir Kumar Sharma, learned counsel appearing for the appellant submits that on 01.05.1997, there was an agreement executed by the respondent for the sale of the property in question. He submits that the appellant in the year 2006 instituted a Title Suit No. 12 of 2006 for specific performance of contract for sale dated 01.05.1997 and also filed for a decree for Rs. 2,25,000/- as an alternative. He submits that on 26.02.2007, the learned Sub-Judge-I, Simdega by terms of judgment dated 26.02.2007 passed in Title Suit No. 12 of 2006 partly allowed the suit for claim of money of Rs. 2,25,000/- along with interest @ 8% per annum, however, the learned court has refused to grant relief of execution and registration of the sale deed. He further submits that the defendant- respondent (who is the plaintiff-respondent in the present litigation) preferred title appeal against the said judgment dated 26.02.2007 and the parties entered into a compromise on 22.08.2008 and on the basis of the same, the learned appellate court in terms of compromise on 30.08.2008
Decision
disposed of the appeal directing the respondent to execute and register the sale deed in favour of the appellant after receiving Rs. 1,50,000/- by -4- S.A. No. 73 of 2014 31.12.2008. He further submits that the plaintiff-respondent instituted the Eviction Suit No. 04 of 2009, which was decreed in favour of the plaintiff-respondent by judgment dated 04.01.2012, against that the appeal was preferred by the appellant, which was dismissed by the judgment dated 15.04.2014 and thereafter the present second appeal was admitted on the substantial question of law by this court on 17.09.2014. In these premises, the learned counsel appearing for the appellant submits that there is an agreement for sale and the decree was made on the basis of compromise, as such, the relationship of landlord and tenant came to an end and in view of that the law points, framed by this court are required to be answered in favour of the appellant, as the Exhibit-A has not been properly appreciated by the learned trial court as well as by the learned appellate court. He further submits that this aspect of the matter has set at rest in view of the judgment of Hon’ble Supreme Court in the case of R. Kanthimathi & Ors. Versus Mrs. Beatrice Xavier, reported in AIR 2003 SC 4149. Para-6 of the said judgment is quoted hereinbelow:- “6. Any jural relationship between two persons could be created through agreement and similarly could be changed through agreement subject to the limitations under the law. Earlier when appellants were inducted into tenancy it only means both agreed that their relations is to be that of a landlord and tenant. Later when landlord decides to sell this property to the tenant and tenant agreed by entering into agreement they by their relationship as purchaser and seller. When seller- landlord accepts sum he actually acts under this agreement. This acceptance preceded by agreement of sale changes their relationship. This is how they intended. Once accepting such a change then their relationship of landlord tenant ceases.” On the same line, he also relied in the case of B. their positive act changed 5. Paramashivaiah & Anr. versus M.K. Shankar Prasad & Anr., reported in AIR 2009 KARNATAKA 88, wherein, the Karnataka High Court in para-20 of the said judgment, held as follows:- “20. Section 53-A of the said Act provides for a situation whereby a party to a transaction, which is in writing has taken possession of the property or any part thereof in part performance of the -5- S.A. No. 73 of 2014 said contract or if he is already in possession continues in possession in part performance of the said contract and thus in furtherance of the contract and is willing to perform his part of the contract, then he is entitled to defend his possession by virtue of the contract or agreement under which he is put in possession of the property. It is obvious that a tenant has no right to seek protection of his possession by virtue of Section 53-A of the Transfer of Property Act when a jural relationship is that of landlord and tenant and that the Rent Act would prevail and the landlord could seek eviction in terms of the provisions of the said Act. But where a tenant is in possession of the premises by virtue of an agreement and does certain acts in furtherance of the said agreement, in my view the relationship of landlord and tenant would cease from the date of the agreement and would be replaced by a new relationship of intending purchaser and seller and under the circumstances Section 53-A of the Transfer of Property Act enables such a person in possession of the premises by virtue of the agreement or contract to defend his possession. Hence the answer to the incidental question raised for my consideration is that the petitioners herein are entitled to defend their possession by virtue of the agreements dated 3-3-1993 as that the respondents/landlords had no right to evict the petitioners by virtue of the provisions of the Karnataka Rent Act.” 6. Relying on these two judgments, learned counsel appearing for the appellant submits that once the compromise decree is there and the relationship of landlord and tenant came to an end and the two vital documents were not interpreted correctly by the learned trial court as well as the learned appellate court, on these grounds, the law points may kindly be answered in favour of the appellant. 7. On the other hand Mr. Sachin Kumar, learned counsel appearing for the plaintiff-respondent submits that the title suit was filed by the appellant, wherein the said suit was partly decreed for specific performance and the said suit was challenged by the plaintiff respondent in Title Appeal No. 04 of 2007 and the said title appeal was disposed of on the basis of the compromise stipulating that Rs. 1,50,000/- was to be paid by 31.12.2008, however, the said was not complied and for enforcing -6- S.A. No. 73 of 2014 the said compromise decree, one execution case was filed being Execution Case No. 02 of 2011 by the appellant herein. The said execution case was dismissed by order dated 10.11.2014, which was challenged before this Court in W.P.(C) No. 6280 of 2014 and by order dated 18.08.2015, the said writ petition was also dismissed, against the said order, the appellant herein also preferred Special Leave Petition before the Hon’ble Supreme Court, being S.L.P.(C) No. 29259 of 2015, in which, the notices were issued to the respondent. He further submits that the appellant herein filed an I.A. being I.A. No. 02 of 2017 in the said SLP, praying therein to deposit the amount, wherein the Hon’ble Supreme Court vide order dated 31.03.2017 directed to deposit the amount before the Registry of the Hon’ble Supreme Court. He further submits that by order dated 23.10.2017, the Hon’ble Supreme Court has allowed the said amount to be withdrawn by the parties and the liberty was provided to the respondent to execute the trial court decree. By order dated 05.07.2018, the matter was directed to be listed for final disposal and thereafter by order dated 22.08.2019, the said SLP was dismissed. On these grounds, he submits that once the decree and the agreement itself is not in existence in view of said development that too on the proceeding of the appellant, at this stage, the law points are required to be answered in favour of the plaintiff-respondent. He further submits that there are two concurrent findings of two fact finding courts and in view of that this second appeal is fit to be dismissed. 8. In view of the above submissions of the parties, the court has gone through the materials available on record including Exhibit-A, which is the agreement of sale, upon which, much reliance has been placed by the learned counsel appearing for the appellant for reversal of the two concurrent findings. It is an admitted fact that the suit property was being utilized by the appellant in view of the partnership business. The appellant failed to pay the rent and for that he has entered into a sale agreement and if such a situation is there, in a suit for eviction in view of the tenancy, he has entered into a compromise with the landlord it will be implied that the tenant admitted that the correctness of claims and grounds of ejectment and the court can pass a decree on the basis of the compromise in a subsequent suit. The case in hand admittedly the appellant has entered into an agreement with the respondent and for -7- S.A. No. 73 of 2014 specific performance of that contract he has filed the suit, as has been discussed hereinabove and that suit has been partly decreed in favour of the appellant and only for recovery, thus the same was not affirmed by the learned court in a suit filed by the appellant for specific performance that was challenged in appeal by the plaintiff respondent herein in that proceeding in a appeal which was disposed of by judgment dated 31.08.2008 on the condition that the appellant will pay a sum of Rs. 1,50,000/- by 31.12.2008. The Execution Case was dismissed, which was challenged in W.P.(C) No. 6280 of 2014 and the writ petition was also dismised by judgment dated 18.08.2015, which was the subject matter in S.L.P.(C) No. 29259 of 2015. In the said proceeding the different orders have been passed by the Hon’ble Supreme Court, which are as under:- to the issued 26.10.2015:- Notices were respondent in SLP. 31.03.2017:- The appellant filed an I.A. No. 02 of 2017 in S.L.P.(C) No. 29259 of 2015. The Hon’ble Supreme Court passed following order on the said I.A. “……This is an application for deposit of the amount before the Registry of this Court. Let the amount be deposited within two weeks hence. Be it clarified, the deposit of the amount before the Registry of this Court will not confer any kind of equity in favour of the petitioner. On such deposit being made, the amount shall be invested in an interest bearing short term deposit in the UCO Bank, Supreme Court Compound, New Delhi. I.A. stands disposes of….” 03.07.2017:- the Hon’ble Supreme Court passed the following order:- “Let the matter be listed in the third week of September, 2017, for final disposal. In the meantime, the respondent shall deposit a sum of Rs.2,50,000/- (Rupees two lakh fifty thousand only) before the Registry of this Court within four weeks hence. The amount so deposited shall be kept in a short term fixed deposit in the UCO Bank, Supreme Court Compound, New Delhi, so that interest can be accrued on the same. 23.10.2017:- The following order was passed “Heard Mr. Ajay Kumar, learned counsel for the petitioner and Mr. Shiv Ram Sharma, learned counsel for the respondent. Having heard learned counsel for the parties, we direct that the respondent will be at liberty to execute the trial court decree. Both the parties are at liberty to -8- S.A. No. 73 of 2014 withdraw their respective amounts that have been deposited SLP(C) 29259/2015 2 before the Registry of this Court along with the accrued interest. The special leave petition is, accordingly, disposed of. There shall be no order as to costs. 27.10.2017:- The word ‘respondent’ occurring in second paragraph of the order dated 23.10.2017 be substituted as ‘petitioner’. 05.07.2018 :- The Hon’ble Supreme Court passed the following order:- Let the matter be listed after two weeks for final disposal. 22.08.2019:- The Hon’ble Supreme Court passed the following order:- “We have heard the arguments advanced by Mr. Ajay Kumar, learned counsel appearing for the petitioner, at considerable length. We have heard Mr. Shiv Ram Sharma, learned counsel appearing for the respondent and also perused the impugned order. We are not inclined to interfere with the impugned order in and by which the High Court has affirmed the order passed by the Executing Court allowing the petition filed under Section 47 of the CPC. The special leave petition is accordingly dismissed. Pending applications, if any, shall also stand disposed of.” And finally said S.L.P.(C) was dismissed. 9. Thus, in these backgrounds, it is crystal clear that the said agreement was with regard to the same property and for that the sale agreement was entered into. Suit for specific performance was filed by the appellant herein and so far as the transfer is concerned, that part was not affirmed in the said title suit, however, only recovery part was decreed in favour of the appellant herein and the said was terminated in the compromise decree in view of the appeal filed by the respondent herein, which was not fulfilled by the appellant and on proceeding further taken initiative by way of filing the writ petition before this court and the matter went upto the Hon'ble Supreme Court and finally the said SLP was dismissed. 10. In view of the above, it cannot be said that the learned trial court as well the learned appellate court has not appreciated the finding in its correct perspective. The learned trial court has framed the issues for deciding the suit and Issue Nos. 3, 4 and 5 were with regard to relationship of landlord and tenant and payment of rent and personal necessity. The learned trial court has taken all these three issues -9- S.A. No. 73 of 2014 simultaneously as all were interlinked and Exhibit-A was further considered in deciding the said issue. The movement of the appellant in Title Suit No. 12 of 2006 and the subject matter of that suit in Title Appeal No. 04 of 2007 was further considered in para-12 of the learned trial court judgment and after discussing elaborately, the said suit was decreed in favour of the plaintiff-respondent. The learned appellate court has further framed the point for deciding the same and the learned appellate court has taken into consideration Exhibit-A, which is an agreement dated 01.05.1997 and also in Title Suit No. 12 of 2006 and Title Appeal No. 04 of 2007 and has discussed elaborately and came to the conclusion that there is relationship of landlord and tenant and the court finds that there is no perversity in deciding the suit by the learned trial court or by the learned appellate court. 11. The judgment relied by Mr. Sharma, learned counsel appearing for the appellant are on the other footings, as in that case simply the agreement was there and in the meantime the eviction suit was filed, in view of that the Hon'ble Supreme Court and the Karnataka High Court have held that once the intention of the landlord is there to sell the land the relationship of landlord and tenant came to an end. In the case in hand, the facts are otherwise, as the suit was instituted by the appellant with regard to specific performance, which has attained the finality up to the Hon’ble Supreme Court. In this background, the judgment relied by learned counsel appearing for the appellant is not helping the appellant. 12. A contract envisaged between the parties under Section 11(1)(d) of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982 [Now Jharkhand Buildings (Lease, Rent & Eviction) Control Act, 2000] can be only with regard to time of payment and no other type of contract much less the type alleged in the case in hand is postulated and tenant cannot absolve himself from the liability of the eviction even if there was a contract between the parties for adjustment of a particular payment made by the tenant to the landlord towards to the future rental. In the case in hand the said agreement was considered up to the Hon'ble Supreme Court. A mere contract alleged to have been executed by the plaintiff in favour of the defendant did not change their status of relationship unless the title is transferred and hence the relationship of landlord and tenant has been adjusted between them. In the case in hand, the property in question was not transferred, however, the same was under litigation and travelled up to the Hon'ble Supreme Court. -10- S.A. No. 73 of 2014 13. Accordingly, the law points, framed by this court is answered against the appellant, saying that the aforementioned Exhibit-A has been rightly considered by the learned trial court as well as by the learned appellate court and there is no perversity in both the judgments of the learned trial court as well as the learned appellate court respectively. The court further finds that there are concurrent findings of two fact findings courts and the said findings of both the courts are upon appreciation of the entire evidence available on record and therefore unless concurrent findings recorded by the courts were found to be perverse, same is not required to be interfered by the High Court in exercise of powers sitting under Section 100 of the CPC. 14. In view of the above facts, reasons and analysis, this appeal is dismissed. 15. Let the Lower Court Records be sent back to the concerned court forthwith. Amitesh/- [A.F.R.] (Sanjay Kumar Dwivedi, J.)