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Kuldip Singh Sawhney Vs. Parkash Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 967 of 1983
Judge
Reported inAIR1985P& H222
ActsTransfer of Property Act - Sections 53-A
AppellantKuldip Singh Sawhney
RespondentParkash Chand and ors.
Excerpt:
.....sections 80 (2) & 89 & punjab motor vehicles rules, 1989, rules 85 & 80: [t.s. thakur, cj, jasbir singh & surya kant, jj] appeal against orders of state or regional transport authority imitation held, a stipulation regarding the period of limitation available for invoking the remedy shall have to be strictly construed. that is because any provision by way of limitation is in the nature of a restraint on the remedy provided under the act. so viewed two inferences are clear viz., (1) sections 80 and 89 of the act read with rule 85 of the rules make it obligatory for the authorities making the order to communicate it to the applicant concerned and (2) the period of limitation for any appeal against the order is reckonable from the date of such communication of the reasons would imply..........new nazhar hussain road, civil lines, ludhiana was evacuee property. it was purchased by sujan singh, father of the petitioner. the premises excluding 3 shops was in occupation of prakash chand (now deceased) predecessor-in-interest of the respondents as a tenant under sujan singh. sujan singh made an oral partition of his property amongst his sons and a memo of partition deed dec. 10, 1975, was executed which was effective since oct. 26, 1974. sujan singh and his son jaswinder singh filed a suit on the basis of memo of partition, which was decreed by senior sub judge on jan. 28, 1976. the premises in dispute fell to the share of kuldip singh petitioner. on may 27, 1976, kuldip singh petitioner claiming to be the landlord of the premises filed an application for ejectment.....
Judgment:
ORDER

1. The premises bearing No. B-I-S-IX-392 New Nazhar Hussain Road, Civil Lines, Ludhiana was evacuee property. It was purchased by Sujan Singh, father of the petitioner. The premises excluding 3 shops was in occupation of Prakash Chand (now deceased) predecessor-in-interest of the respondents as a tenant under Sujan Singh. Sujan Singh made an oral partition of his property amongst his sons and a memo of partition deed Dec. 10, 1975, was executed which was effective since Oct. 26, 1974. Sujan Singh and his son Jaswinder Singh filed a suit on the basis of memo of partition, which was decreed by Senior Sub Judge on Jan. 28, 1976. The premises in dispute fell to the share of Kuldip Singh petitioner. On May 27, 1976, Kuldip singh petitioner claiming to be the landlord of the premises filed an application for ejectment against Prakash Chand on the grounds of non-payment of rent w.e.f. Mar. 1, 1976 and personal requirement. The petitioner was in railway service and he retired as Inspector of Works on Aug. 31, 1976.

2. The arrears of rent claimed by the petitioner was tendered on the first date of hearing. Parkash Chand denied that he was liable to be ejected. He raised the plea that on Nov. 11, 1975, Sujan Singh father of the petitioner had agreed to sell the premises in his occupation to him for Rs. 35000/- vide agreement Ex. R. 13 and he paid Rs. 2000/- as earnest money besides Rs. 2100/- for purchase of stamp paper to Sujan Singh. The sale deed was to be executed and registered by Nov. 30, 1976 or within one month after the purchase of the stamp paper by Sunjan Singh and the intimation thereof to him whichever was later. He has ceased to be tenant of the premises after the execution of the agreement Ex. R. 13 and he is in possession thereof in part performance of the agreement under S. 53A of the Transfer of Property Act. The ejectment petition filed against him by the petitioner under the Act is liable to be dismissed.

3. The petitioner as also his father Sujan Singh have denied that the latter had agreed to sell the premises to Parkash Chand. The execution of the agreement Ex. R. 13 has also been denied. The Rent Controller vide order dated June 8, 1981, held that Sujan Singh did not execute the agreement Ex. R. 13 nor deed he agree to sell premises to Parkash Chand. It was further held that the petitioner required the premises for his own use. The ejectment application filed by the petitioner was allowed and Parkash Chand was directed to vacate the premises within three months. Prakash Chand died and his legal representatives filed an appeal against the order of Rent Controller. The appellate authority vide order dated Feb. 17, 1983 allowed the same and set aside the order of the Rent Controller holding that the agreement to sell (Ex. R. 13) is genuine and it was duly executed by Sujan Singh and Parkash Chand. Parkash Chand and after his death, his legal representatives are in occupation of the house in part performance of the agreement of sale. The relationship of the landlord and tenant between the parties has to come to an end. The petitioner cannot get the house vacated on the ground of personal requirement. It is against this order that the present revision is directed.

4. Kuldip Singh petitioner appeared as witness and stated that the oral partition was effected in 1974 and the memo of partition was reduced into writing in 1975. On the basis of this memo of partition, his father Sujan Singh and his brother Jaswinder Singh filed a civil suit. He along with his other brother admitted the claim made in the civil suit. All the properties referred to in the memo of partition were allotted to his father in lieu of the claim of the ancestral property left by them in Pakistan. He approached Parkash Chand with the request that after the partition, the rent be paid to him. Prakash Chand refused disputed signatures of Sujan Singh on the agreement Ex. R. 13 are similar to his admitted signatures on the receipts Exs. R. 1 to R. 10. The parties have not led any expert evidence on this point. A visual comparison of the disputed signatures of Sujan Singh on Ex. R. 13 with his admitted signatures on the receipts Exs. R. 1 to R. 10 reflect remarkable similarity. It is difficult to negative the finding of the learned appellate authority that the signatures of Sujan Singh on the agreement Ex. R. 13 are genuine.

5. R. W. Ram Lal is an attesting witness of the agreement Ex. R. 13. He stated that he knew Parkash Chand and Sujan Singh. He identified his signatures on the agreement Ex. R. 13 relating to the sale of the premises in dispute by Sujan Singh in favour of Parkash Chand for Rs. 35000/-. He identified the signatures thereon of Parkash Chand and Sujan Singh. Parkash Chand paid Rs. 2100/- for the purchase of stamp paper and Rs. 2000/- as earnest money to Sujan Singh. He himself had gone to the house of Parkash Chand who was a Municipal Commissioner to get same forms attested for the preparation of ration card and at that time the agreement was brought. It was signed by him and Hans Raj attesting witness besides Sujan Singh and Parkash Chand. has asked him to stay when he had gone to his house.

6. Parkash Chand was dead by the time the evidence was recorded by the Rent Controller. He had taken a definite stand in the written statement filed by him that Sujan Singh had agreed to sell the premises to him for Rs. 35000/- and the same was executed on Nov. 11, 1975. Hans Raj another attesting witness of the agreement Ex. R. 13 is also dead. Ram Lal has supported the plea of Parkash Chand that Sujan Singh had agreed to sell the premises to Parkash Chand for Rs. 35000/- and that the agreement Ex. R. 13 was executed and signed by the parties in his presence. Sujan Singh has denied his signatures as also the execution of this agreement.

7. Sujan Singh has admitted his signatures on the receipts Exs. R. 1 to R. 10. The learned appellate authority has observed that the This clause is entirely for the benefit of Sujan Singh and is in a way detrimental to the interest of Parkash Chand. In case the agreement Ex. R. 13 had been forged, it is highly improbable that Parkash Chand would have added this clause thereto.

8. Learned counsel for the petitioner has argued that the original agreement which should have been on a stamp paper has not been produced. The non-production of the original makes the genuineness of Ex. R. 13 doubtful. This point has been considered and rightly repelled by the appellate authority. The agreement Ex. R. 13 bears the signatures of Parkash Chand and Sujan Singh. It appears that the agreement was prepared in duplicate. One was retained by Sujan Singh and the other by Prakash Chand.

9. Learned counsel for the petitioner has argued that in the agreement Ex. R. 13 Prakash Chand has argued that in the agreement Ex. R. 13 Parkash Chand has signed as seller and Sujan Singh as purchaser. This accidental mistake cannot be pressed for a finding that the agreement is forged. It rather supports the plea of the respondents that the agreement is genuine.

10. Another point urged by the learned counsel for the petitioner is that Parkash Chand did not obtain a receipt from Sujan Singh when he allegedly paid Rs. 4100/- to Sujan Singh. Prakash Chand paid that to Sujan Singh against receipt. He would not have paid Rs. 4100/- to Sujan Singh without a receipt. The absence of such receipt makes the genuineness of the agreement Ex. R. 13 doubtful. The contention is without merit. The agreement Ex. R. 13 is signed by Sujan Singh. There was no point for Parkash Chand to press for a separate receipt when the agreement itself was signed by Sujan Singh.

'Clause 9 of the agreement Ex. R. 13 reads:

That the party of the second part at present is also enjoying the roofs of the three shops but after completion of sale deed will not claim any right over the said roofs of the 3 shops or in the 3 shops as those are not being agreed to be sold hereunder. The party of the second part may enjoy the roofs till those are sold or the party of the first part makes construction'. to recognise him his landlord and to pay rent. His father did not inform him at any time that he had entered into an agreement of the sale of the premises with Parkash Chand. A. W. Sujan Singh is the father of the petitioner. He stated that the passage to the roof of the 3 shops is through the premises in dispute. Parkash Chand and his father used the roof of the 3 shops for sleeping purposes. He received rent from Parkash Chand till Mar. 1976 against receipts. He admitted his signatures on the receipts Ex. R. 1 to R. 10. He denied his signatures on the agreement Ex. R. 13. He further denied that he had agreed to sell the premises to Parkash Chand for Rs. 35000/- and had received Rs. 2000/- as earnest money.

11-12. The appellate authority has given sound and good reasons for holding that the agreement Ex. R. 13 bears genuine signatures of Sujan inferring therefrom that Sujan Singh had agreed to sell the premises in dispute to Parkash Chand for Rs. 35000/- on Nov. 11, 1983. The finding on this point in favour of the respondents is affirmed being correct. The contrary stand taken by the petitioner and his father (Sujan Singh) is blatantly false and is rejected.

13. The agreement of sale (R. 13) between Sujan Singh and Parkash Chand was executed on 11-11-1975. Clauses (4) to (6) thereof read--

'Clause (4):

That the party of the second part is already in possession of the property in dispute as tenant, and his possession will also be deemed to be in part performance of the agreement of sale.

Clause (5):

That in case the party of the second part fails to get the sale deed executed and registered within the stipulated date on payment of the balance sale price, the party of the first part shall have the right to forfeit the earnest money paid by the party of the second part.

Clause (6):

That in case the party of the first part fails to get the sale deed executed and registered by 30-11-1976, the party of the second part, shall retain the possession of the property and shall not be liable to pay any future rent to the party of the first part, and may get the sale deed executed in his favour through Court'.

14. The learned Appellate Authority has held that the petitioner being the successor-in-interest of his father Sujan Singh is as much bound by the agreement of sale (R. 13) as Sujan Singh himself. Parkash Chand, therefore, occupied the premises at the time of the filing of the ejectment petition, under the agreement of sale and that the relationship of landlord and tenant between the parties had come to an end as had been agreed upon thereunder that the possession of the tenant would be deemed to be in part performance of the agreement of sale.

15. The learned counsel for the respondents has argued that in view of the fact that the liability of Parkash Chand to pay the rent was to cease after 30-11-1976, the relationship of landlord and tenant between the parties shall be taken to have come to an end with effect from 1-12-1976. Under these circumstances, the petitioner cannot seek the ejectment of the respondent under the provisions of the East Punjab Urban Rent Restriction Act.

16. S. 53A of the T. P. Act, 1882, deals with the principle of part performance. The relevant part of this section reads--

'Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty,

and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract,

and the transferee has performed or is willing to perform his part of the contract,

then, notwithstanding that the contract, the transferor or any person claiming under him shall be debarred from enforcing against the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract'.

17. The respondent have invoked the provision contained in S. 53A of the T. P. Act. They can possibly do so in case they fulfil the conditions prescribed therein. One of the salient conditions to be fulfilled by the transferee for invoking the principle of part performance is that he has performed or is willing to perform his part of the contract. Parkash Chand filed a written statement and he did not aver therein that he has performed or is willing to perform his part of the contract. In the absence of any plea on the part of the transferee on this point, it is difficult to hold that he was (or is) willing to perform his part of the contract. This apart, irrespective of the fact that Sujan Singh could execute the sale by 30-11-1976 and that he has not executed it so far, no step had been taken by Parkash Chand during his lifetime or after his death by the respondent to enforce the agreement of sale (R. 13). This is a circumstance which militates against the willingness on the part of the transferee to perform his part of the contract. The transferee could get the sale deed executed on payment of Rs. 33000/- to the transferor. Under these circumstances, the respondents cannot press the provision contained in S. 53A of the T. P. Act relating to part performance in support of their plea that they have ceased to occupy the premises as tenants under the petitioner with effect from 1-12-1976. A finding on this point of the learned Appellate Authority in favour of the respondents cannot be sustained.

18. The petitioner was in the service of the Railways. He has since retired. He owns the residential house in dispute at Ludhiana. He has desired to settle at Ludhiana after his retirement. There is hardly any justification to doubt his bona fides about his personal requirement.

19. The learned counsel for the respondents also fairly conceded during arguments that in case the respondents are found occupying the premises as tenants under the petitioner, then the latter will be justified in seeking their ejectment on the ground of personal requirement.

20. In the result, the revision is allowed, the impugned order of the learned Appellate Authority set aside and that of the Rent Controller ordering the ejectment of the respondents restored. The respondents are allowed three months' time to vacate the premises in dispute. No order as to costs.

21. Revision allowed.


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