Hari Singh (Deceased) (Through Lrs) v. S.S Jogi Etc.

Usha Mehra, J.— Appellant (plaintiff before Trial Court) is aggrieved of the order of dismissal of his suit seeking possession of shop No. 35 situated in Desh Bandhu Gupta Market, New Delhi, beside recovery of Rs. 7,200/- asarrearsof mesne profit and also seeking future mesne profit.

2. In nut-shell appellant's claim rested on the fact that he was the owner of the said shop. The same was purchased by him from the Government of India vide a duly executed conveyance deed dated 5th March, 1962. Respondent No. 1 unauthorisedly possessed the said shop and thereafter let it out to respondent No. 2. Since both the respondents are in unauthorised occupation of appellant's property hence the suit.

3. Suit was contested by respondent No. 1 on the ground that the plaintiff had entered into an agreement with him to sell the said shop. In part performance of the said agreement Ex. D1, the respondent No. 1 was put into possession of the shop in question. Therefore, his possession was neither illegal nor unauthorised. He became owner of the property in question, and therefore, had a right to let out the same to respondent No. 2. He was, therefore, protected under Section 53-A of the Transfer of Property Act, 1882 (hereinafter referred to as the T.P Act). He even challenged the maintainability of the suit, inter alia, on the ground that in the notice issued by the plaintiff, respondent No. 1 was admitted to be a tenant. Having accepted respondent No. 1 as tenant and the rent being less than Rs. 3,500/- suit was not maintainable. The same was barred under Section 50 of the Delhi Rent Control Act.

4. Ms. N.N Firdausi Counsel for the respondent contended that the averments made in the plaint are not only vague but contrary to the plea taken in the notice issued by plaintiff. In the notice dated 21st June, 1962 Ex. D3 plaintiff specifically pleaded that respondent No. 1 herein was in occupation of the said shop since 8th October, 1957 as a tenant under him. That in order to avoid objection from the Rehabilitation Authorities against letting the property to respondent No. 1 a partnership deed was entered into which on the same very day was cancelled with a hand-note written between the parties. That actual intended relationship between the parties was that of a landlord and a tenant. Having said so in para 3 of the plaint the plaintiff took a somersault by saying that respondent No. 1 herein was in unauthorised possession of the shop. He had no right, title or interest in the same. He was a rank trespasser. Whereas respondent No. 1 in reply to the said notice vide Ex. D6 dated 7th July, 1962 pointed out that he was in lawful possession. That the vacant possession of the shop was given to him by the plaintiff in part performance of the agreement to sell dated 10th October, 1957. That respondent No. 1 herein had paid a sum of Rs. 768.80p on 10th October, 1957 as advance towards purchase price of the said shop. The balance amount of Rs. 3,075.20p. was to be paid in cash or in the form of claims adjustment within four months of the transfer of the said property in the name of the plaintiff. That the respondent No. 1 offered the balance amount towards the purchase price to the plaintiff for payment to the Government, but the plaintiff with a mala-fide intention did not accept the same. Therefore, committed the breach of contract.

5. Countering this argument Mr. Amarjit Singh, Counsel for the appellant contended that plaintiff had put up a case that respondents were unauthorised occupants. The reasons for their being unauthorised occupants have been explained in the evidence. It was explained that since respondent No. 1 committed breach of the agreement and was never ready and willing to perform his part of the contract, therefore, contract came to an end. Since the breach was committed by the respondent No. 1 his possession as well as possession of respondent No. 2 became unauthorised. Since the possession of respondent No. 1 was unauthorised, therefore, respondents were not entitled to any protection under Section 53-A of the T.P Act. Even the learned Trial Court after scrutinising the evidence came to the conclusion that the respondent No. 1 failed to substantiate that he was ready and willing to perform his part of the contract. Ex. D1 clearly stipulated that respondent No. 1 would deposit the balance of the sale price or the claim of the aforesaid value with Rehabilitation Authorities. It is only thereafter that conveyance deed was to be obtained and consequently thereto the plaintiff was to execute the sale deed in favour of the respondent No. 1. But the respondent No. 1 did not deposit the balance sale price with the Rehabilitation Authorities. Moreover, he did not show his willingness to deposit the balance price with the Rehabilitation Authorities. Therefore, in fact it was the respondent No. 1 who committed breach of the agreement. He did not perform his part of the obligation as he did not deposit the balance sale price with the authority. Since breach committed by respondent the learned Trial Court rightly came to the conclusion that protection under Section 53-A of the T.P Act was not available to the respondents. This issue has rightly been decided in favour of the plaintiff.

6. We find force in the above submissions of Mr. Amarjit Singh. Section 53-A of the T.P Act which is reproduced as under, deals with the part performance:

[53A. 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 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 tinder him shall be debarred from enforcing against the transferee and persons 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.]

7. Continuation of part performance of the contract remains valid provided both the parties are ready or willing to perform their part of the contract. But in the case in hand the learned Trial Court while deciding issues Nos. 2 and 5 concluded that respondent did not perform nor was ready and willing to perform his part of the remaining contract, therefore, the learned Trial Court came to the conclusion that the protection given under Section 53-A was not applicable in the facts and circumstances of this case. We find no infirmity in this part of the reasoning and the conclusion arrived at by the Trial Court. Even otherwise the decision on issue Nos. 2 and 5 which was against the respondent has not been assailed by them. That has thus attained finality. Since breach was committed by respondent No. 1, therefore, his possession and throughhim possession of respondent No. 2 became unauthorised. Respondent No. 1 never set up the case that he was the tenant under the plaintiff. All along his plea was that he became owner of the premises pursuant to agreement to sell and in part performance plaintiff put him in possession of the property in question. Therefore, the contention of Counsel for the respondent that in view of notice Ex. D3 and D4 the suit must fail, has no merit.

8. Perusal of the record clearly indicates that plaint does disclose cause of action. Plaintiff had put up the case that respondents were unauthorised occupants of the shop in question. This gave cause of action to the plaintiff. In response to this assertion of the plaintiff, respondent No. 1 pleaded that in part performance of the agreement Ex. D1 he came in possession. Admittedly, plaintiff did not plead that respondent came in possession because of agreement to sell. At the same time this defence has been set up by the respondent, though the respondent miserably failed to substantiate the same. Since possession of the respondent became unauthorised due to breach committed by him it gave cause of action to the plaintiff to seek restoration of possession of the premises in question to him. Hence it can safely be concluded that the suit was maintainable. Trial Court ought to have held that suit was maintainable and that the plaint does disclose cause of action. To support his contentions Mr. Amarjit Singh placed reliance on the decision of Supreme Court in the case of Firm Sriniwas Ram Kumar v. Mahabir Prasad, AIR 1951 SC 177. Relevant portion of the judgment reads as follows:

“The rule undoubtedly is that the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings. In such circumstances, when no injustice can possibly result to the defendant, it may not be proper to derive the plaintiff to a separate suit.….”

9. Relying on the observation as quoted above it can safely be concluded that once it is held that breach was committed by the respondent performing his part of the agreement and that he was not ready or willing to perform his part of the agreement then the issue Nos. 1 and 4 ought to have been decided in favour of the plaintiff.

10. For the reasons discussed above the conclusion arrived atby the Trial Court on issue Nos. 1 and 4 cannot be sustained. So far as issue Nos. 2 and 5 are concerned, the finding is in favour of the plaintiff. Similarly, so far as issue No. 3 is concerned it has no material bearing on the suit. Once it is held that occupation of respondent No. 1 became unauthorised, the respondent No. 2 had no locus standi to be in possession of the premises in question. Since we have held that decision of the Trial Court on issue Nos. 1 and 4 is not sustained the same is accordingly set aside by holding that plaint does disclose cause of action and hence maintainable.

11. Now turning to the next question that follows for determination is as to what mesne profit the plaintiff was entitled to. The plaintiff appearing as PW 2 nowhere mentioned about the mesne profit. He; however, adduced the evidence of one Mr. K.G Khanna PW 1 who stated that rent for the shop in question could be realised at the rate of Rs. 200/- per month. When subjected to cross-examination he admitted that he was a friend of the plaintiff and was not a summoned witness. He did not know the prevailing market rent. He never took any shop on rent nor could produce any evidence to substantiate that the; prevailing market rent was Rs. 125/- per month or Rs. 200/- per month. In the absence of there being any evidence having been produced by the plaintiff about the prevailing market rent hence no decree on this account could be passed. Appeal is partly allowed. Appellant would be entitled to a decree of possession but as regard mesne profit appeal fails. Order” accordingly. Decree in terms of this order be passed.