HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Misc. Application No. 77 / 2016

IN

S.B. Civil Second Appeal No.198 / 2015

Ramswaroop S/o Shri Nathmal Ji, by caste Arora, Aged 81 years,

R/o Khatripura Nagaur, Tehsil & District Nagaur.

----Appellant

Versus

1. Mohd. Ramjan S/o Late Shri Mohammed Hussain, B/c Silawat,

R/o Mishrawadi Nagaur Tehsil & District Nagaur.

2. Mohammed Iqbal S/o Late Shri Mohammed Hussain B/c

Silawat, R/o Mishrawadi Nagaur, Tehsil & District Nagaur.

3. Smt. Farida D/o Late Shri. Mohammed Hussain W/o Shri

Mohammed Saleem, B/c Silawat, R/o PHED Colony, Outside Ajmeri

Gate, Nagaur, Tehsil & District Nagaur.

4. Smt. Rasida D/o Late Shri Mohammed Hussain W/o Shri Afjal

B/c Silawat, R/o Near Isakiya Madarsa, Silawaton Ka Bas, Tehsil &

District Jodhpur.

----Respondents

_____________________________________________________

For Petitioner(s) : Mr. N.R. Choudhary

For Respondent(s) : Mr. O.P. Metha, Mr. Jayant Joshi & Mr.

Pradeep Gehlot

_____________________________________________________

HON'BLE MR. JUSTICE PANKAJ BHANDARI

Order

09/02/2017

1.

The appellant has preferred this misc. application under

Section 151 CPC stating therein that the appellant after passing of

the order in Second Aappeal No.198/2015 dated 15.12.2015 has

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purchased the shares from co-sharers and therefore, is no longer

tenant as he has now become a co-owner.

2.

It is contended that in the order dated 15.12.2015

passed by the Hon’ble High Court, the appellant was directed to

submit undertaking within three months which was to expire on

15.02.2016, prior to that date, the applicant has purchased the

property from co-sharers therefore, now he is not required to

submit the undertaking.

3.

Counsel for the appellant has placed reliance on

(1996) 6 Supreme Court Cases 373 SK. Sattar SK. Mohd.

Choudhari Vs. Gundappa Amabadas Bukate and (2013) 3

JLJ 186 Hafizullah Vs. Puran Chand Jain.

4.

It is contended by counsel for the petitioner that

Section 111(d) of the Transfer of Property Act would not have any

applicability and Section 44 of the Transfer of Property Act would

be applicable.

5.

Reliance has also been placed on AIR 1973 Supreme

Court 2256, Arjunlal Bhatt Mall Gothani and others Vs.

Girish Chandra Dutta and another; 2010 AIR SCW 1411,

Joseph Kantharaj and Anr. Vs. Attharunnisa Begum S and

2001 AIR SCW 2369, R. Kanthimathi and another Vs. Mrs.

Beatrice Xavier.

6.

In the aforesaid judgments, it was held that the

relationship of landlord and tenant ceases to exist once an

agreement to sale is entered between lessor and lessee and the

old relationship is not revived even if the consideration amount is

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returned by the landlord to the tenant. The court also held that in

such cases, the suit is not maintainable on the ground of willful

default.

7.

Counsel for non-applicant has placed reliance on 2003

AIR SCW 2436, T. Lakshmipathi and others. Vs. P.

Nithyananda Reddy and others and 2005 AIR SCW 3240

Pramod Kumar Jaiswal and others Vs. Bibi Husn Bano and

others., wherein the Hon’ble Apex Court held that on purchase of

property from some of the co-owners, the tenancy as a whole is

not extinguished and the position as a tenant continues and the

purchaser tenant if bound to comply with the requirement of Rent

Control Act.

8.

I have considered the rival contentions.

9.

Section 111(d) provides that a lease of immovable

property determines in case the interests of the lessee and the

lessor in the whole of the property become vested at the same

time in one person in the same right.

10.

The contention of counsel for the petitioner that this

would apply only if purchase is made by sub-tenant cannot be

accepted because the provision is c