IMPORTANT POINT
(1) Parties who have acted in terms of agreement for sale and altered their relationship consciously cannot now go back to their old relationship and seek relief in terms of such relationship.
(2) Whenever a certain relationship exists between two parties in respect of a subject-matter and a new relationship arises as regards identical subject-matter two sets of mutually contra relationships cannot co-exist as being inconsistent and incompatible.

JUDGMENT

Soumen Sen J.—The appeal is arising out of a judgment and decree dated January 31, 2017 passed by the learned Judge, 10th Bench, City Civil Court at Calcutta in a suit for recovery of possession and injunction being Title Suit No. 2917 of 2010. The learned Trial Court decreed the suit on contest and dismissed the counter claim filed by the defendant.

2. The defendant in the suit is the appellant herein.

3. Shorn of unnecessary details, the plaintiff/respondent is the landlord in respect of the suit premises. The defendant/appellant was a tenant under the plaintiff in respect of the second floor of the suit premises. Earlier to the present suit, the plaintiff/respondent filed a suit for eviction being Ejectment Suit No. 1386 of 2001 in the Small Causes Court at Calcutta for eviction of the defendant/appellant.

4. During the pendency of the suit the appellant expressed her willingness to purchase the second floor of the suit premises. On the basis of the said proposal the parties negotiated, and during such negotiation the plaintiff had agreed to sell the said floor for a consideration of Rs.13 lakhs and the appellant agreed to purchase the said flat at the said consideration. The parties thereafter executed an agreement for sale on 15th February, 2006 which contained the detailed terms and conditions for the sale. Under the said agreement it was agreed that the entire consideration amount of Rs.13 lakhs shall be paid in installments commencing from December, 2006 and ending with November, 2008. It was further agreed that a sum of Rs.5 lakhs shall be paid within March 2007 as a condition precedent. The purchaser/defendant/appellant also agreed to pay a sum of Rs.40,000/- at the time of execution of the agreement which she paid by an account payee cheque bearing no. 253304 dated December 11, 2006. Till the entire consideration money is paid and the sale agreement is registered, the tenant had agreed to pay ‘occupancy charges’ at the rate of Rs. 2,000/- per month on and from January 2007 until payment of Rs.5 lakh and thereafter the ‘occupancy charges’ would get reduced by Rs.150/- per lakh. The plaintiff/respondent received Rs.40,000/- by cheque as the first installment. Admittedly, the balance consideration money was not paid. The defendant/appellant had also failed to make the payment of Rs.5 lakh within March 2007 as agreed between the parties. In view of such breach the plaintiff/respondent rescinded the said agreement and sued the defendant/appellant for recovery of possession.

5. The defendant contested the suit and filed the written statement denying the allegations. The defendant alleged that the plaintiff mischievously had her water supply disconnected at the tenanted premises for which she had to incur an expenditure sum of Rs.13,500/- as water lifting charges from May 2010 to January 2011. She also denied and disputed that she had failed to make payment of the balance consideration money or failed to register the alleged deed of conveyance.

6. The learned trial judge, on consideration of the evidence, held that by reason of the agreement for sale entered into between the plaintiff and the defendant, the relationship of landlord and tenant came to an end, and the plaintiff was entitled to sue the defendant for recovery of possession upon establishing his right.

7. Ms. Sabita Mukherjee Roy Chowdhury, the Learned Counsel for the appellant has submitted that the Trial Judge had completely erred in arriving at a finding that by reason of the execution of the agreement for sale, the relationship of the plaintiff and defendant as landlord and tenant ceased to exist. It is submitted that the agreement was unregistered and never acted upon. Notwithstanding the agreement for sale, if at all such agreement can be looked into, it does not, in any event, alter the relationship. The agreement for sale would specifically show that the appellant would be required to pay ‘occupancy charges’ for a certain period of time which m