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IN THE HIGH COURT OF ALLAHABAD
Sudhir Narain, J.
KRIPA SHANKER DWIVEDI - Appellant
Versus
IST ADDITIONAL DISTRICT JUDGE, KANPUR - Respondents
C. M. W. P. 15617 Of 1981
Decided On : 05/21/1998
PART PERFORMANCE - TRANSFER OF PROPERTY ACT, 1882 - SECTION 53A - REQUISITES - TRANSFEROR MUST CONTRACT TO TRANSFER IMMOVABLE PROPERTY BY WRITING - TRANSFEREE MUST TAKE POSSESSION OF PROPERTY OR CONTINUE IN POSSESSION IN PART PERFORMANCE OF CONTRACT - TRANSFEREE MUST DO SOME ACT IN FURTHERANCE OF CONTRACT - TRANSFEREE MUST PERFORM OR BE WILLING TO PERFORM HIS PART OF CONTRACT.
Fact of the Case:
The petitioner, claiming to be in possession of the disputed property under an agreement to sell, challenged the order of the revisional court remanding the case to the trial court for deciding the suit afresh. The petitioner contended that he was entitled to the benefit of Section 53A of the Transfer of Property Act, 1882, and that the relationship of landlord and tenant had come to an end.
Finding of the Court:
The court held that the petitioner had not established all the requisites contemplated under Section 53A of the Transfer of Property Act, 1882, and that the revisional court had rightly remanded the case to the trial court for a fresh decision.
Issues: Whether the petitioner was entitled to the benefit of Section 53A of the Transfer of Property Act, 1882.
Ratio Decidendi: The court held that the petitioner had not established all the requisites contemplated under Section 53A of the Transfer of Property Act, 1882, and that the revisional court had rightly remanded the case to the trial court for a fresh decision.
Final Decision: The writ petition was dismissed, subject to the observation that the trial court shall decide the suit within three months from the date of production of a certified copy of the order.
( 1 ) THIS writ petition is directed against the order dated 12. 9. 1981 passed by respondent No. 1 remanding the case to the Judge Small Causes Court for deciding the suit afresh keeping in view the observations made in the above order.
( 2 ) THE facts. In brief, are that Dhani Ram, respondent No. 2 filed Suit No. 1603 of 1978 against the petitioner in the Court of Judge Small Causes Court. Kanpur for recovery of arrears of rent, ejectment and damages on the allegation that one Shivanand Pandey was the owner of House no. 107/194, Nehrunagar, Kanpur. The petitioner was his tenant at monthly rent of Rs. 18. He sold the house in question to respondent No. 2 on 18. 1. 1977 which was registered on 2. 3. 1977. The petitioner was in arrears of rent from 2. 3. 1977 to 26. 11. 1978. He was given a notice to pay arrears of rent but as he failed to pay the rent, inspite of service of notice, the suit was filed.
( 3 ) THE petitioner filed written statement and denied that there was any relationship of tenant and landlord between him and Shivanand Pandey. He alleged that he was living in Premises No. 107/194a which he had constructed himself for the last about 20 years. Shivanand Pandey was the owner of House No. 107/194. He entered into agreement to sell in respect of that house for rs. 18,000. He paid Rs. 4. 000 in advance and was put into possession of the house in question. He further pleaded that he instituted Suit No. 520 of 1979 which was pending in the Court of find Civil Judge for specific performance of the agreement to sell. The Judge Small Causes court dismissed the suit on 7. 3. 1980 on the finding that the plaintiff failed to establish the relationship of landlord and tenant. The plaintiff-respondent filed revision No. 65 of 1960. During the pendency of the revision, he also admitted additional evidence under Order XLI. Rule 27. The petitioner also filed evidence in rebuttal. On consideration of the material on the record, he has remanded the case to the Judge Small Causes Court by his impugned order dated 12. 9. 1981 to decide the suit afresh keeping in view the observations made in the judgment and the material on the record. This order has been challenged in the present writ petition.
( 4 ) I have heard Sri S. D, Pathak, learned counsel for the petitioner, and Sri V. 8. Tewari, learned counsel for respondent No. 2.
( 5 ) LEARNED counsel for the petitioner urged that Shivanand Pandey, the owner of House No. 107/194, had executed an agreement to sell this house for Rs. 18. 000 in favour of the petitioner on 14. 8. 1975 and took advance of Rs. 4,000. In para 3 of the agreement it was specifically mentioned that he has delivered possession of the house and the petitioner having obtained possession in pursuance of the said agreement was entitled to the benefit of Section 53a of transfer of Property Act, and the relationship of landlord and tenant came to an end and he was in possession of the disputed property in his own right under the agreement. He has placed reliance upon the decision Ghaniram v. Shankarlal and others. AIR I960 MP 3, wherein it was held that if the subsequent transferee has taken the transfer with notice of the contract for the sale of the property, he is liable to the same equities as the party from whom he has taken the transfer. In Bai Dosabai v. Mathuradas Govtnddas and others, AIR 1980 SC 1334. It was held that a contract for the sale of immovable property though does not, of itself, create any interest in or charge on such property, creates an obligation annexed to the ownership of immovable property, not amounting to an interest in the property, but which obligation may be enforced against the transferee with notice of the contract or a gratuitous transferee of the property. These cases have no application in relation to the interest being created by transfer of possession as contemplated under Section 53a of Transfer of Property Act.
( 6 ) IN Nathoo Lal v. Phool Chand, AIR 1970 SC
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