1. Heard Sri Salil Rai, Advocate for petitioner and Sri Om Prakash, Advocate holding brief on behalf of Sri B.D. Mandhyan, learned Senior Advocate for respondent no. 3.
2. It is not in dispute that petitioner's father entered into tenancy of House No. 58/74 Sarain Khawaja, Agra, which was owned by respondent no. 3. The respondent no. 3 executed an agreement of sale with Sri Bashir Khan, father of petitioner on 01.05.1979. This agreement of sale was duly registered under the Registration Act, 1908 (hereinafter referred to as the "Act, 1908"). Copy of said agreement is on record as Annexure-1 to the writ petition. A perusal of aforesaid agreement shows that the total sale consideration for property in dispute was Rs. 7,500/-, out of which Rs. 4000/- was paid at the time of execution of agreement of sale and petitioner's possession was described as that of purchaser and remaining amount of Rs. 3,500/- was to be paid at the time of execution of sale deed, for which the time limit was upto September, 1979. After execution of aforesaid agreement of sale petitioner's father, Bashir Khan ceases to pay any rent to respondent no. 3 in view of change of his status vide agreement of sale dated 01.05.1979. The respondent no. 3 also did not insist upon petitioner's father to pay rent thereafter. Petitioner's father expired in 1983. The respondent no. 3, however, after more than a decade, served a notice dated 30.10.1992/12.11.1992 upon petitioner stating that he had not paid rent for the last more than 15 years and, therefore, should vacate the premises in question.
3. The notice was replied by petitioner stating that there was no justification of payment of rent since he is occupying premises in dispute in the capacity of purchaser/owner. Thereafter by another notice dated 21.12.1992 respondent no. 3 forfeited tenancy rights of petitioner and instituted S.C.C. Suit No. 155 of 1993 for eviction of petitioner and recovery of rent.
4. Petitioner contested the suit and besides other he raised a plea of lack of jurisdiction of Small Cause Court to entertain the suit stating that status of petitioner's father and after his death, petitioner's, changed from tenant to purchaser and, therefore, eviction suit before Small Cause Court is not maintainable.
5. The Trial Court, however, decided aforesaid issue raised by petitioner, against him, and decreed suit vide judgment dated 23.11.1998, whereagainst petitioner preferred S.C.C. Revision No. 6 of 1999, which has been partly allowed vide judgment dated 04.08.1999 and maintaining decree of eviction, in respect of arrears of rent, some relief has been given to petitioner.
6. Before this Court, Sri Salil Rai, learned counsel for petitioner, contended, that since status of petitioner changed from that of tenant to purchaser/owner, after execution of agreement of sale dated 01.05.1979, therefore, suit for eviction treating petitioner as tenant, in respect of accommodation in question, was not maintainable. He placed reliance on Apex Court's decisions in M/s Technicians Studio Pvt. Ltd. Vs. Smt. Lila Ghosh and another, AIR 1977 SC 2425; Shrimant Shamrao Suryavanshi and another Vs. Pralhad Bhairoba Suryavanshi and others, AIR 2002 SC 960; R. Kanthimathi and others Vs. Mrs. Beatrice Xavier, AIR 2003 SC 4149; Mahadeva and others Vs. Tanabai, AIR 2004 SC 3854; and Hamzabi and others Vs. Syed Karimuddin and others, AIR 2000 SCW 4354 and a decision of Bombay High Court in Wilfred Lovette Vs. Ganesh, AIR 1988 Bombay 142.
7. Sri Om Prakash, Advocate holding brief Sri B.D. Mandyan, learned Senior Advocate for respondent no. 3, on the contrary stated that agreement of sale would not result in conferring rights of ownership upon petitioner and in any case Section 53-A of Transfer of Property Act, 1882 (hereinafter referred to as the "Act, 1882") has no application in the case in hand and, therefore, judgments of courts below warrant no interference. He placed reliance on a decision of this Court on Mishri Lal Karak Vs. Sri Dinesh Chandra Agarwal and others, 2012(3) ARC 870.
8. Having considered the rival submissions, in my view, this writ petition deserved to be allowed since entire proceedings are wholly without jurisdiction. My reasons are as under.
9. It is not disputed that an agreement of sale was executed between parties in respect of accommodation in question on 01.05.1979. Therein the petitioner also made stipulation regarding the status of purchaser in possession of property in dispute in the capacity of purchaser. The relevant part of agreement reads as under:
"ekfydku dCtk o n[ky fuLQ fgLlk tk;nkn etdwj ij [kjhnnkj ekSlwQ dk djkj gqvkA** "Agreement for handing over title and possession to aforesaid purchaser over half portion of property was executed."
(English translation by the Court)
10. Even the subsequent conduct of seller by not insisting upon the purchaser to pay rent in respect of property in question justify an inference that it was well understood between the parties that the status of tenant has changed to purchaser and he is now having possession of property in dispute as purchaser and for this reason, for more than one and half decade, the seller did not take any step to ensure payment of rent althrough.
11. Though in the notice it was stated that repeated demands made for rent but was not paid for the last 16 years. However, this Court finds no such evidence on record to show that any such demand of rent was made by seller of property in dispute, before giving notice in question, to the purchaser. In these circumstances, apparently it cannot be doubted that relationship of petitioner's father and respondent no. 3 and subsequently petitioner and respondent no. 3 was not that of landlord and tenant on the date when small cause suit was filed in the Court of Small Cause. Why the sale deed could not be executed and who is at fault, that is not an issue which needs to be considered in this matter. Though respondent no. 3 claimed that petitioner's father committed default in observing obligations which he had to perform while the case set up by petitioner is that the respondent no. 3 failed to obtain requisite permission from Nagar Palika, Agra/ Ceiling Authorities though the petitioner's father paid balance sum of Rs. 3500/- also to respondent no. 3 in September, 1979 and yet the sale deed was not executed by respondent no. 3 but the scope of inquiry in this case is not extended to examine correctness of the said issue.
12. It cannot be doubted that an agreement of sale shall not result ipso facto resulting in conferring title upon intending purchaser but by itself it cannot be said that suit in question was maintainable before Small Cause Court unless the status and capacity in which petitioner or his predecessor in interest held possession of disputed premises, after execution of agreement of sale, is determined.
13. The court below has misconstrued on this aspect by observing that since agreement of sale was silent on the question of future liability of payment of rent by petitioner's father and the fact that agreement of sale itself would not result in conferring title upon him, absence of any stipulation regarding rent means that possession of property continued to be in the same status as it was on the part of petitioner's father and thereafter petitioner. In my view, the agreement of sale mentions the fact that agreement with respect to possession of purchaser has been made. Any ambiguity in this regard will have to be seen in the light of attending and subsequent conduct of the parties and circumstances. Here the owner of property, after execution of aforesaid agreement, did not ask for rent for more than a decade. This fact is self evident and speak much more than what is not said in the agreement.
14. In my view, looking to the facts of this case, the law laid down by Apex Court in R. Kanthimathi and others Vs. Mrs. Beatrice Xavier (supra) shall apply where the tenant and owner and landlord entered into an agreement of sale. A major part of consideration was paid and balance was to be paid at the time of registration. The agreement for sale recognizes the fact that property demised has already been surrendered to possession of intending purchaser/tenant. The Court construed the said agreement as if it has changed relationship of landlord and tenant into a new relation of seller and purchaser. In para 5 and 6 of the judgment, Court said:
"5. ......This is to be construed in the background of landlady having received major amount of sale consideration and as normally, if substantial sum is received by the seller, the purchaser is put in possession of the property hence to fall in the same lines the said words were used to confirm of this possession in this context. There could be no other reason to record therein as such. Even if it be said to refer to the possession's as a tenant the reassertion in the agreement of sale is only for the purpose of denoting possession given in pursuance to this agreement of sale.
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 positive act changed 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."
15. Therein, Court also held, that, even if subsequently agreement stood canceled, for non-compliance of conditions therein, that would not result in restoration of earlier relation which has already come to an end after execution of agreement of sale. The rights of parties will have to be worked on the basis of new agreement. Relying on an earlier decision in Arjunlal Bhatt Mall Gothani Vs. Girish Chandra Dutta, 1973(2) SCC 197, the Court said:
"This decision clearly spells out that once there is agreement of sale between a land lord and a tenant, the old relationship as such comes to an end. It goes on to record that even after the cancellation of such agreement of sale the status of tenant is not restored as such. In other words, on the date of execution of the aforesaid agreement of sale their status as that of landlord and tenant changed into a new status as that of a purchaser and a seller."
16. Ultimately the Court concluded in para 8 of the judgment as under:
"So we have no hesitation to reject the same. Every conduct of the landlady right from the date of entering into agreement of sale, accepting money towards the sale consideration, delivering possession in lieu of such agreement all clearly indicates and has to be construed in law that she repudiated her old relationship of landlord and tenant. Thus after this parties enter into new cloak of seller and purchaser and their relationship to be governed under the said terms of the agreement. Every right and obligation thereafter would flow from it. Even if parties under the agreement of sale does not perform their obligations remedy may be availed in law as permissible under the law."
17. In view of above authority, I am clearly of the view that relationship of landlord and tenant in the case in hand having also ceased, suit for ejectment, treating petitioner as tenant, before Small Cause Court was not maintainable.
18. The next issue comes from the fact that petitioner has pleaded in paras 12 and 13 of his written statement, about application of Section 53-A of Act, 1882. He has pleaded that he being already in possession of property in dispute, in furtherance of part performance of contract, petitioner's predecessor interest also paid balance amount to respondent no. 3 and, therefore, he is entitled to take benefit under Section 53-A of Act, 1882. Despite the fact that suit for specific performance may be barred by time, yet the defence in respect of part performance was available since a defence cannot be said to be barred by limitation.
19. It could not be disputed by learned counsel for the respondents that ingredients of defence of part performance under Section 53-A of Act, 1882 had been pleaded and raised by petitioner in his written statement. The agreement/contract is in writing. According to petitioner, his father, i.e., predecessor in interest, was in possession and continued in possession. In part performance of contract the petitioner's predecessor in interest paid a further sum of Rs. 3500/- to respondent no. 3. He was willing to perform his part of contract but it is the respondent no. 3 who did not take steps for execution of sale deed after taking permission from municipal authorities/ceiling authorities. Whether these facts are correct or not, it all needed a detailed investigation since they relate to a right in regard of immovable property which is of different nature than that of the right of tenancy. Such right could not have undergone investigation/adjudication by Small Cause Court since it lacks jurisdiction in this regard. The plea having been taken by petitioner with all requisites of Section 53-A of Act, 1882, it gives rise to a substantial issue which had to be decided in a regular court and not in Small Cause Court, in view of Section 15, Clause (4) of Second Schedule of Provincial Small Cause Courts Act, 1887 (hereinafter referred to as the "Act, 1887").
20. In my view, the suit, therefore, was not cognizable by Small Cause Court. It ought to have returned plaint to respondent no. 3 so as to be presented in a regular court of jurisdiction.
21. In taking this view I find support from a Single Judge decision of Bombay High Court in Wilfred Lovette Vs. Ganesh (supra) wherein, in para 24, the Court said:
"24. ..... Here the specific plea has been raised under Section 53A of the T.P. Act which would debar the plaintiff from ejecting the defendant. No doubt, a specific issue has been raised by the written statement relating to an interest in the immoveable property which, if proved, would non-suit the plaintiff. In such a situation, it must be held that as soon as, in an ejectment suit which otherwise be cognizable by a Small Cause Court, a defence is raised in the written statement under Section 53A of the T.P. Act, the suit itself goes out of jurisdiction of the Small Cause Court to decide the substantial issues involved in the suit and the Small Cause Court, in such a situation, has to return the plaint with the written statement for presentation to proper regular Court having jurisdiction to decide the suit."
22. I find all the reasons to express myself in agreement with the view taken above.
23. The mere fact that petitioner cannot institute a suit for specific performance since it has become barred by time would make no difference so as to deny him right to take this plea (regarding Section 53-A of Act, 1882) in his defence. This has been so recognized by Apex Court in Shrimant Shamrao Suryavanshi and another Vs. Pralhad Bhairoba Suryavanshi (supra) wherein, the Court, in para 6, said:
"6. A perusal of Section 53-A shows that it does not forbid a defendant transferee from taking a plea in his defence to protect his possession over the suit property obtained in part performance of a contract even though the period of limitation for bringing a suit for specific performance has expired. It also does not expressly provide that a defendant transferee is not entitled to protect his possession over the suit property taken in part performance of the contract if the period of limitation to bring a suit for specific performance has expired."
24. Again in paras 14, 15, 16 and 18 the Court said:
"14. But there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A of the Act. The necessary conditions are-
1) there must be a contract to transfer for consideration any immovable property;
2) the contract must be in writing, signed by the transferor, or by someone on his behalf;
3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained;
4) the transferee must in part performance of the contract take possession of the property, or of any part thereof;
5) the transferee must have done some act in furtherance of the contract; and
6) the transferee must have performed or be willing to perform his part of the contract.
15. We are, therefore, of the opinion that if the conditions enumerated above are complied with, the law of limitation does not come in the way of a defendant taking plea under Section 53-A of the Act to protect his possession of the suit property even though a suit for specific performance of a contract has barred by limitation.
16. The matter may be examined from another angle. The established rule of limitation is that law of limitation is not applicable to a plea taken in defence unless expressly a provision is made in the statute. The law of limitation applies to the suits and applications. The various articles of the Limitation Act show that they do not apply to a defence taken by a defendant in a suit. Thus, the law of limitation bars only an action in a court of law. In fact, what the Limitation Act does is, to take away the remedy of a plaintiff to enforce his rights by bringing an action in a court of law, but it does not place any restriction to a defendant to put forward any defence though such defence as a claim made by him may be barred by limitation and cannot be enforced in a court of law. On the said principle, a defendant in a suit can put forward any defence though such defence may not be enforceable in a court of law, being barred by limitation.
18. It is, therefore, manifest that the Limitation Act does not extinguish a defence, but only bars the remedy. Since the period of limitation bars a suit for specific performance of a contract, if brought after the period of limitation, it is open to a defendant in a suit for recovery of possession brought by a transferor to take a plea in defence of part performance of the contract to protect his possession, though he may not able to enforce that right through a suit or action."
25. The above view has been reiterated and followed subsequently also in Mahadeva and others Vs. Tanabai (supra).
26. It cannot be disputed that Section 53-A does not confer any active title on the transferee in possession but if the conditions laid down therein are satisfied, it only imposes a statutory bar on the transferor. The transferee gets a right to defend his possession if he satisfies various ingredients of Section 53-A. Be that as it may, a right claimed under Section 53-A of Act, 1882 whether is sustainable or not, has to be adjudicated in regular proceedings since such an adjudication by Small Cause Court is barred by the provisions of Act, 1887, i.e., Section 15, Clause (4) read with second schedule.
27. In view of above discussion, I have no hesitation to hold that both the courts below have committed material illegality and a patent error of law in answering the question of jurisdiction in favour of respondent no. 3 though they did not have such jurisdiction.
28. The writ petition is accordingly allowed. The impugned judgments dated 23.11.1998 and 04.08.1999 are hereby quashed. The Trial Court is directed to return plaint to respondent no. 3 so that, if so advised, he may initiate appropriate proceedings in a regular Court.
29. No costs.
Order Date :- 28.03.2014 AK