V.S. Aggarwal, J.
1. The present revision petition has been filed by Smt. Joginder Kaur (hereinafter described as 'the petitioner') directed against the judgment of the learned Appellate Authority, Ambala, dated 24th September, 1981. By virtue of the impugned judgment, the learned Appellate Authority had set aside the order passed by the learned Rent Controller, Ambala dated 4th October, 1979 and instead allowed the petition for eviction giving the petitioner time until 25th October, 1981 to vacate the property.
2. The relevant facts are that the Hindu Undivided Family of Kidar Nath and Sons had filed a petition for eviction against the petitioner with respect to the suit premises. It was asserted that Smt. Joginder Kaur, Gurdev Singh and Gurmeet Kaur are the tenants in the suit property. The monthly rent was stated to be Rs.6.80 paise plus house tax. It was alleged that the tenants have failed to pay the arrears of rent amounting to Rs.582.48 paise besides Rs.29.12 paise as water charges. Furthermore it was asserted that the tenants have sublet or transferred the possession of one room of the property to Charanjit Sehgal and Pawan Sehgal. The said room had been converted into a non-residential premises.
3. The petition for eviction had been contested. It was alleged that there was no rela-tionship of landlord and tenant between the said Hindu Undivided Family and the pet-tioner. The plea raised was that the house in question was the property of Mahesh Chander, Romesh Chander, Suresh Chander, Raj Kumar and their mother Smt. Munni Devi. It did not belong to Hindu Undivided Family of Kindar Nath and Sons. Others wise also, it was denied that the property in question had been sublet or that the respondent-landlord was entitled to receive the rent. It was asserted that Joginder kaur also instituted a civil suit claiming ownership of the suit property in pursuance of the agreement of sale entered into by Mahesh Chander as general attorney of the abovesaid owners. The said agreement was arrived at in the year 1971. The said consideration agreed was Rs.21,000/-. Rs.13,000/- had already been paid.
4. The learned Rent Controller had framed the issues and held that the petitioner-tenant could only be evicted on the ground of non-payment of rent. But since there was no relationship of landlord and tenant between the parties, the order of eviction could not be passed. The plea of the petitioner that proceedings for eviction should be stayed was also repelled.
5. Aggrieved by the same, Hindu Undivided Family of Kidar Nath and Sons preferred and appeal. The learned Appellate Authority had set aside the findings of the learned Rent Controller and concluded that mere agreement and that too oral agreement will not confer any right on the petitioner nor put an end to the relationship of landlord and tenant between the parties. Accordingly, the appeal was allowed and an order of eviction was passed because of rent had never been tendered. Hence, the present revision petition.
6. Earlier, the Court had passed an order that the present revision petition should be heard along with Regular Second Appeal No.2016 of 1980. However, on 19th April, 1982 this Court had directed that the present revision petition is not to be linked with the Regular Second Appeal No.2016 of 1980 between the parties. Needless to state that the Regular Second Appeal referred to above is confined to the civil suit filed by the petitioner on the basis of the alleged agreement with Mahesh Chander and others. The said civil suit had been dismissed by the First Appellate Court and the second appeal is pending.
7. Otherwise also, merely because civil suit was pending is no ground to stay the eviction proceedings. At the moment, this Court is basically concerned with as to if there is relationship of landlord and tenant between the parties or not. The title of the property by itself may reflect on the merits but not all. Consequently, merely because if civil suit has been filed is no ground to stay the eviction proceedings. In any case, this matter has been adjudicated in this Court between the parties more than almost two decades ago that the present revision petition is not to be linked with the Regular Second Appeal. Therefore, this Court is proceeding to dispose of the present revision petition.
8. In the present case in hand, the short controversy agitated has been that there has been oral agreement of sale with the petitioner with respect to the property in question and, therefore, the relationship of landlord and tenant had ceased to exist. A perusal of the record reveals that reliance had been placed on the decision of the Mysore High Court in the case of B. Chikkannaswamy and Ors. v. Hayat Khan, A.I.R.1955 Mysore 38 wherein it was held that if a mortgagee purchaser under an unregistered deed of sale has paid either the whole or part of the consideration, the same can be said to be in pursuance of the contract of sale within the meaning of Section 53A of the Transfer of Property Act and/ he can claim the benefit of the same. Reliance further has been placed on the decision of Madras High Court in the case of Annamalai Goundan v. Venkatasami Naidu and Ors., A.I.R. 1959 Mad. 354. In the cited case Section 53A of the Transfer of Property Act was again subject matter of consideration. Madras High Court took the view that a deed of transfer should have been obtained by the party before he could invoke Section 53A of the Transfer of Property Act. But even if a contract to sell alone was obtained, Section 53A of the Transfer of Property Act is applicable. The moment possession is taken or continued under the contract of sale, it was held that the original relationship of landlord and tenant ceased to exist.
9. It would be noticed hereunder that in the present case cited decisions had no application because possession has not been delivered in pursuance of any agreement. Therefore, indeed, the cited decisions in no way would help the petitioner.
10. Section 53A of the Transfer of Property Act reads as under: -
'53.A. Part Performance- 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, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and person claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract.Provided that nothing in this Section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.'
11. The doctrine of part performance is Well known. A bare reading of the same would require that there is a writing in existence signed by the transferor and possession had been delivered in pursuance thereto. This Court in the case of Murid Khan and Ors. v. Usman Khan and Ors., A.I.R. 1962 Pb. 475, considered the said controversy and held that the doctrine of part performance as embodied in Section 53A can be invoked only when there is a writing in existence signed by the transferor or on his be-half. The contract itself should be in writing.
12. Supreme Court in the case of Biswabani Private Limited v. Santosh Kumar Dutta and Ors., 4 (1980)1 S.C. 185, also considered the said controversy. It was held that Section 53A of the Transfer of Property Act can only be used as a shield and not as sword. It should only be used as a shield to protect one's possession. Supreme Court held that since the tenant was already in possession, his position as statutory tenant would not be altered by virtue of lease which otherwise was held to be not valid.
13. Similarly, in case of 5.5. Tyagi v. The 1st Additional District Judge, Allahabad and Ors, 5 1981(2) R.C.J. 62 the tenant had taken the plea that the landlord hadagreed to sell the premises for a consideration of a particular amount. The original agreement was not placed on the record. It was held that the relationship of landlord and tenant would not come to an end. The tenant could not take the benefit of Section 53A of the Transfer of Property Act.
14. Karnataka High Court in the case of' Rangarao Ramarao Deshpande v. Chan-nappa Basappa Lakshmanahalli and Ors., 6 1974 R.C.R. 564, dealt with a controversy more close to the facts of the present case. It was held that the landlord entering into an agreement to sell the property to the tenant, there was no merger of tenancy rights of tenant with the agreement to sell. The plea of the tenant, thus, to take the advantage of Section 53A of the Transfer of Property Act was repelled.
15. Same was the view expressed by the Rajasthan High Court in the case of Yagyanarain v. Damdan, 1995(1) R.C.R. 391. It was held as under :-
'The defendant non-petitioner has specifically admitted in para No.1 of the written statement that the plaintiff agreed to sell the suit premises to his wife for Rs. 4,000/-, he obtained the entire sale consideration and he then issued a certificate, it has not been pleaded in the written statement that an agreement for sale was executed by the plaintiff in favour of his wife. Even assuming for the sake of agreement for a moment that such an agreement was executed, it did not go to confer any right, title or interest in favour of his wife. The suit ejectment has been filed in the year 1986 and no suit for specific performance on the basis of the alleged agreement of sale has so far been filed. On the contrary, it is well proved from the material on record including the affidavits of Kirta Ram Gora and Shankar Ram that the suit premises was let out to the defendant on monthly rent of Rs.10/- by the plaintiff. There is no reference either in the order of the trial Court or in the order of the appellate Court that any counter-affidavit was filed by the defendant non-petitioner. In the case relied upon by the first appellate Court, the sale deed was executed in favour of the tenant by the landlord. The case relied upon by the learned counsel for the plaintiff-petitioner duly supports his contentions.'
16. Patna High Court in the case of Sudhir Kumar Chatterjee and Ors. v. B.N. Sinha 1995(2) R.C.R. 553, while dealing with a similar controversy concluded as under :-
'In the present case the defendant respondent has no absolute right of ownership in its true sense. He can be in possession as a tenant but cannot become its owner, unless the agreement of sale was proved according to law and he actually purchased the property, i.e. house and other things, the defendant-respondent continues to be a tenant and that he has committed breach of conditions of the tenancy. There was default for more than two months in making payment of rent by the defendant-respondent. Consequently, the suit was decreed by the trial Court, as the status of the defendant continued to be of a tenant, and he failed to prove the alleged agreement for sale and he did not acquire the absolute right of ownership. An ownership cannot be acquired just by assumption. It has to be positively proved and acquired. The defendant as tenant was found to pay the arrears of rent and is liable to be evicted. In my opinion, the lower appellate Court failed to consider and record a finding as to how the status of a tenant was converted to be matured into the status of absolute rights of an owner. A substantial question of law is, in my opinion, involved and the same has incorrectly been decided by the lower appellate Court. The decree of the lower appellate Court, therefore, deserves to be set aside.'
17. Similar view was expressed by the Andhra Pradesh High Court in the case of Smt. Jaya P. Hemarajani v. Smt. Rose Elvina D Souza,9 1996(1) R.C.J. 542 and also by the Himachal Pradesh High Court in the case of Gursaran v. Shakuntala,10 1996(2) R.C.R. 102. Himachal Pradesh High Court in para No.24 of the judgment held as under:-
' . Moreover, terms of agreement, as detailed above, nowhere could lead to the inference that tenancy of Gursaran stood extinguished, but on the other hand the only inference in view of this term and previous litigation could be that tenancy was to continue and it could be terminated or eviction could be there in due course of law, especially when injunction suit was dismissed and the present landlords claim that they have become owners of House No.l 14 by way of the sale of in th6ir favour, was not disturbed at all.'
18. Madras High Court more recently in the case of Jessia Thavamani v. Liakath Basha,11 1997(1) R.C.R. 147 repelled a similar argument by concluding as wider :-
' I am of the same view that an oral agreement to sell would not terminate the landlord tenant relationship and even if there was agreement of sale it had to be in writing and the agreement itself should, in clear terms, specify that the landlord-tenant relationship was being terminated and that there was no future liability on the part of the tenant to pay rent to the landlord and in the absence of such specific recitals in the written agreement the mere.oral agreement of sale would npt exonerate the tenant from continuing to pay rent to the landlord. In this case, admittedly; (be tenant has not paid any rent to the respondent herein, even after notice. The explanation offered by the petitioner herein is not at all acceptable.'
19. While traveling into these precedents, an attempt has been made only dealing with the question if the relationship of landlord and tenant would come to an end or not. No opinion is expressed with respect to the civil rights pending between the parties. It is abundantly clear that the relationship of landlord and tenant would not come to an end merely because an agreement is alleged to have been entered into. Herein, it is stated to be an oral agreement. Once the relationship of landlord and tenant had been continuing, necessarily so because possession had not been delivered in pursuance of any such agreement, the liability of the petitioner-tenant to pay and tender the rent continued. On the first date of hearing, admittedly, rent was not tendered. The order of eviction, thus, was rightly passed.
20. There is no ground to interfere. The revision petition being without merit must fail and is accordingly dismissed